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EXHIBIT 5.1
[CENTEX CORPORATION LETTERHEAD]
December 5, 2000
Centex Corporation
2728 North Harwood
Dallas, Texas 75201
Ladies and Gentlemen:
I am Executive Vice President, Chief Legal Officer and Secretary of
Centex Corporation, a Nevada corporation (the "Company"), and have acted as
counsel for the Company in connection with the Registration Statement on Form
S-3 (Commission File No. 333-49966) (the "Registration Statement") filed by the
Company, 3333 Holding Corporation, a Nevada corporation ("Holding"), Centex
Development Company, L.P., a Delaware limited partnership ("Development"), and
Centex Trust I and Centex Trust II, each a statutory business trust formed under
the laws of the State of Delaware (the "Trusts", and together with the Company,
Holding and Development, the "Registrants"), with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"). The Registration Statement relates to the proposed issuance
and sale from time to time of up to $1,100,000,000 aggregate initial offering
price of (a) the Company's senior debt securities (the "Senior Debt
Securities"), (b) the Company's subordinated debt securities (the "Subordinated
Debt Securities"), (c) shares of common stock, par value $.25 per share, of the
Company, certificates for which also represent (1) a beneficial interest in
common stock of Holding and warrants to purchase Class B Units of limited
partnership interest in Development and (2) preferred share purchase rights
(collectively, the "Common Stock"), (d) shares of preferred stock of the Company
(the "Preferred Stock"), (e) warrants of the Company to purchase other
securities (the "Warrants"), (f) preferred securities of the Trusts (the "Trust
Preferred Securities"), (g) the Company's guarantees with respect to the Trust
Preferred Securities (each, a "Guarantee" and, collectively, the "Guarantees"),
(h) junior subordinated debt securities of the Company for issuance directly to
the Trusts (the "Junior Subordinated Debt Securities"), (i) the Company's stock
purchase contracts (the "Stock Purchase Contracts") and (j) the Company's stock
purchase units (the "Stock Purchase Units"), consisting of Stock Purchase
Contracts and other securities. The Senior Debt Securities, the Subordinated
Debt Securities, the Common Stock, the Preferred Stock, the Warrants, the Trust
Preferred Securities, the Guarantees, the Junior Subordinated Debt Securities,
the Stock Purchase Contracts and the Stock Purchase Units may be hereinafter
referred to as the "Securities."
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Each series of the Senior Debt Securities will be issued pursuant to an
indenture dated as of October 1, 1998 between the Company and The Chase
Manhattan Bank, as Trustee (the "Senior Indenture") and each series of the
Subordinated Debt Securities will be issued pursuant to an indenture dated as of
March 12, 1987 between the Company and The Chase Manhattan Bank, as Trustee (the
"Subordinated Indenture"), as each such indenture will be supplemented, in
connection with the issuance of each such series, by a supplemental indenture or
other appropriate action of the Company creating such series (each, a
"Supplemental Indenture"). Each Guarantee will be issued pursuant to a guarantee
agreement to be entered into between the Company and The Chase Manhattan Bank,
as guarantee trustee thereunder (each, a "Guarantee Agreement" and,
collectively, the "Guarantee Agreements"). Each series of the Junior
Subordinated Debt Securities will be issued pursuant to an indenture dated as of
November 14, 2000 between the Company and The Chase Manhattan Bank, as Trustee
(the "Junior Subordinated Indenture"), as such indenture will be supplemented,
in connection with the issuance of each such series, by a supplemental indenture
or other appropriate action of the Company creating such series (each, a "Junior
Subordinated Supplemental Indenture"). Each Stock Purchase Contract will be
issued pursuant to an agreement (the "Purchase Agreement").
In furnishing this opinion, I or members of my staff have examined and
relied upon copies of the Restated Articles of Incorporation and By-laws of the
Company, as amended to date (together, the "Charter Documents"), the Senior
Indenture and the Subordinated Indenture, the Guarantee Agreement and the Junior
Subordinated Indenture filed as exhibits to the Registration Statement,
corporate records of the Company, including minute books of the Company,
certificates of public officials and of representatives of the Company and the
Trusts, statutes and other instruments and documents as I have deemed necessary
or appropriate to form a basis for the opinions hereinafter expressed.
In connection with this opinion, I have assumed: (a) the genuineness of
all signatures on all documents examined by me; (b) the authenticity of all
documents submitted to me as originals and the conformity to the originals of
all documents submitted to me as copies; (c) the Registration Statement, and any
amendments thereto (including post-effective amendments), will have become
effective under the Securities Act; (d) a prospectus supplement will have been
filed with the Commission describing the Securities offered thereby; (e) all
Securities will be issued and sold in compliance with applicable federal and
state securities laws and in the manner stated in the Registration Statement and
the applicable prospectus supplement; (f) a definitive purchase, underwriting or
similar agreement with respect to any Securities offered will have been duly
authorized and validly executed and delivered by the Company and the other
parties thereto; (g) any securities issuable upon conversion, exchange,
redemption or exercise of any Securities being offered will be duly authorized,
created and, if appropriate, reserved for issuance upon such conversion,
exchange, redemption or exercise; and (h) with respect to shares of Common Stock
or Preferred Stock offered, there will be sufficient shares of Common Stock or
Preferred Stock authorized under the Company's Charter Documents and not
otherwise reserved for issuance.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, I am of the opinion that:
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1. The Company is a corporation duly incorporated and validly existing
in good standing under the laws of the State of Nevada.
2. With respect to a series of Senior Debt Securities, when (a) any
applicable Supplemental Indenture relating to such series has been duly
authorized and validly executed and delivered by each of the parties thereto,
(b) the Board of Directors of the Company or, to the extent permitted by the
General Corporation Law of the State of Nevada and the Charter Documents, a duly
constituted and acting committee thereof (such Board of Directors or committee
being hereinafter referred to as the "Board") has taken all necessary corporate
action to approve and establish the terms of such series and to authorize and
approve the issuance thereof, the terms of the offering thereof and related
matters, and (c) the Senior Debt Securities of such series have been duly
executed, authenticated, issued and delivered in accordance with the Senior
Indenture, any applicable Supplemental Indenture relating to such series and the
applicable definitive purchase, underwriting or similar agreement approved by
the Board in exchange for payment of the consideration therefor provided for
therein, the Senior Debt Securities of such series will constitute legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof is subject to
the effect of (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws relating to or affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
3. With respect to a series of Subordinated Debt Securities, when (a)
any applicable Supplemental Indenture relating to such series has been duly
authorized and validly executed and delivered by each of the parties thereto,
(b) the Board has taken all necessary corporate action to approve and establish
the terms of such series and to authorize and approve the issuance thereof, the
terms of the offering thereof and related matters, and (c) the Subordinated Debt
Securities of such series have been duly executed, authenticated, issued and
delivered in accordance with the Subordinated Indenture, any applicable
Supplemental Indenture relating to such series and the applicable definitive
purchase, underwriting or similar agreement approved by the Board in exchange
for payment of the consideration therefor provided for therein, the Subordinated
Debt Securities of such series will constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforceability thereof is subject to the effect of
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4. With respect to shares of Common Stock, when (a) the Board has taken
all necessary corporate action to approve the issuance thereof and the terms of
the offering of shares of Common Stock and related matters, and (b) certificates
representing the shares of Common Stock have been duly executed, countersigned,
registered and delivered, or if uncertificated, valid book-entry notations are
made in the share register of the Company, either (i) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board in exchange for payment of the consideration therefor (not less than
the par value of the Common Stock) provided for therein, or (ii) upon
conversion, exchange, redemption or exercise
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of any other Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such conversion, exchange,
redemption or exercise as approved by the Board, for the consideration approved
by the Board (not less than the par value of the Common Stock), the shares of
Common Stock will be duly authorized, validly issued, fully paid and
non-assessable.
5. With respect to shares of Preferred Stock, when (a) the Board has
taken all necessary corporate action to approve and establish the terms of the
shares of Preferred Stock, to approve the issuance thereof and the terms of the
offering thereof and related matters, including the adoption of a Certificate of
Designation relating to such Preferred Stock (a "Certificate of Designation"),
and such Certificate of Designation has been filed with the Secretary of State
of the State of Nevada, and (b) certificates representing the shares of
Preferred Stock have been duly executed, countersigned, registered and
delivered, or if uncertificated, valid book-entry notations are made in the
share register of the Company, either (i) in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board in
exchange for payment of the consideration therefor (not less than the par value
of the Preferred Stock) provided for therein, or (ii) upon conversion, exchange,
redemption or exercise of any other Security, in accordance with the terms of
such Security or the instrument governing such Security providing for such
conversion, exchange, redemption or exercise as approved by the Board, for the
consideration approved by the Board (not less than the par value of the
Preferred Stock), the shares of Preferred Stock will be duly authorized, validly
issued, fully paid and non-assessable.
6. With respect to Warrants, when (a) the Board has taken all necessary
corporate action to approve the creation of and the issuance and terms of the
Warrants, the terms of the offering thereof and related matters, (b) the warrant
agreement or agreements relating to the Warrants have been duly authorized and
validly executed and delivered by the Company and the warrant agent appointed by
the Company, and (c) the Warrants or certificates representing the Warrants have
been duly executed, countersigned, registered and delivered in accordance with
the appropriate warrant agreement or agreements and the applicable definitive
purchase, underwriting or similar agreement approved by the Board in exchange
for payment of the consideration therefor provided for therein, the Warrants
will be duly authorized and validly issued and will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof is subject to
the effect of (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws relating to or affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
7. With respect to each Guarantee Agreement, when (a) such Guarantee
Agreement has been duly authorized, validly executed and delivered by each of
the parties thereto, (b) the Company has received the purchase price for the
Junior Subordinated Debt Securities to which such Guarantee Agreement relates,
(c) such Guarantee Agreement has been duly qualified under the Trust Indenture
Act of 1939 and (d) the Board has taken all necessary corporate action to
approve the Guarantee and the issuance thereof and related matters, such
Guarantee Agreement will constitute the legal, valid and binding obligation of
the Company, enforceable against the
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Company in accordance with its terms, except as the enforceability thereof is
subject to the effect of (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
8. With respect to a series of Junior Subordinated Debt Securities,
when (a) any applicable Junior Subordinated Supplemental Indenture relating to
such series has been duly authorized and validly executed and delivered by each
of the parties thereto, (b) the Board has taken all necessary corporate action
to approve and establish the terms of such series and to authorize and approve
the issuance thereof, the terms of the offering thereof and related matters and
(c) the Junior Subordinated Debt Securities of such series have been duly
executed, authenticated, issued and delivered in accordance with the Junior
Subordinated Indenture, any applicable Junior Subordinated Supplemental
Indenture relating to such series and either (1) the applicable definitive
purchase, underwriting or similar agreement approved by the Board in exchange
for payment of the consideration therefor provided for therein or (2) upon
conversion, exchange, redemption or exercise of any other Security, in
accordance with the terms of such Security or the instrument governing such
Security providing for such conversion, exchange, redemption or exercise as
approved by the Board, for the consideration approved by the Board, the Junior
Subordinated Debt Securities of such series will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof is subject to
the effect of (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws relating to or affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
9. With respect to the Stock Purchase Contracts, when (a) the Purchase
Agreement has been duly authorized and validly executed and delivered by each of
the parties thereto, (b) the Board has taken all necessary corporate action to
approve and establish the terms of such Stock Purchase Contracts and to
authorize and approve the issuance thereof, the terms of the offering thereof
and related matters, and (c) the Stock Purchase Contracts have been duly
executed and delivered in accordance with the Purchase Agreement and the
applicable definitive purchase, underwriting or similar agreement approved by
the Board in exchange for payment of the consideration therefor provided for
therein, the Stock Purchase Contracts will constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforceability thereof is subject to the effect of
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
10. With respect to the Stock Purchase Units, when (a) the Purchase
Agreement has been duly authorized and validly executed and delivered by each of
the parties thereto, (b) the Board has taken all necessary corporate action to
approve and establish the terms of such Stock Purchase Units and to authorize
and approve the issuance thereof, the terms of the offering thereof and related
matters, and (c) the Stock Purchase Units have been duly executed and delivered
in accordance with the Purchase Agreement and the applicable definitive
purchase, underwriting or similar agreement approved by the Board in exchange
for payment of the
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consideration therefor provided for therein, the Stock Purchase Units
(including, if applicable, debt securities of the Registrants included in the
Units) will constitute legal, valid and binding obligations of the applicable
Registrants, enforceable against the applicable Registrants in accordance with
their terms, except as the enforceability thereof is subject to the effect of
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
The opinions set forth above are subject to the qualification that I am
a member of the Bar of the State of Texas and such opinions are limited to the
laws of the State of Texas, the State of New York, the United States of America
and Nevada corporate law. At your request, this opinion is being furnished to
you for filing as Exhibit 5.1 to the Registration Statement. Additionally, I
hereby consent to the reference to me under the caption "Legal Opinions" in the
Registration Statement. In giving such consent, I do not thereby concede that I
am within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ Raymond G. Smerge
Raymond G. Smerge
Executive Vice President,
Chief Legal Officer and Secretary
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