<PAGE> 1
EXHIBIT 1.1
UNDERWRITING AGREEMENT
June 14, 2000
CENTEX CORPORATION
2728 North Harwood Street
Dallas, Texas 75201
Dear Sirs and Mesdames:
We (the "REPRESENTATIVE") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "UNDERWRITERS"), and we understand that Centex
Corporation, a Nevada corporation (the "COMPANY"), proposes to issue and sell
$200,000,000 aggregate principal amount of 9.750% Notes due 2005 (the
"SECURITIES"). The Securities will be issued pursuant to the provisions of the
Indenture dated as of October 1, 1998 (such Indenture insofar as it relates to
the Securities and as the same shall be supplemented to the date hereof,
including by Indenture Supplement No. 4 to be dated the Closing Date (as defined
herein)) (the "INDENTURE") between the Company and Chase Bank of Texas, National
Association, as trustee (the "TRUSTEE").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Securities set forth below opposite their names at a purchase price of 99.398%
of the principal amount of Securities plus accrued interest, if any, from June
19, 2000 to the date of payment and delivery:
<TABLE>
<CAPTION>
Principal Amount
Name of Underwriter of Securities
------------------- ----------------
<S> <C>
Chase Securities Inc. $ 150,000,000
Banc of America Securities LLC 25,000,000
Salomon Smith Barney Inc. 25,000,000
----------------
Total $ 200,000,000
================
</TABLE>
The Underwriters will pay for the Securities upon delivery thereof at
the location identified below at 10:00 a.m. (New York time) on June 19, 2000, or
at such other time or date, not later than seven full business days thereafter,
as shall be agreed upon by the Company and
<PAGE> 2
the Representative. The time and date of such payment and delivery are
hereinafter referred to as the "Closing Date."
The Securities shall have the terms set forth in the Prospectus dated
January 24, 2000 and the Prospectus Supplement dated June 14, 2000, including
the following:
<TABLE>
<S> <C>
Representative(s) and address(es):
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Huw Richards
(telecopy no.: 212-834-6170)
With a copy of any notice
pursuant to Section 9(c)
to:
1 Chase Manhattan Plaza
26th Floor
New York, New York 10005
Attention: Legal Department
Banc of America Securities LLC
100 North Tryon Street
Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
(telecopy no.: 704-388-9939)
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Attn: General Counsel
(telecopy no.: 212-816-0915)
Certain Terms of the Securities:
Title of Securities: 9.750% Notes due 2005
Aggregate Principal Amount of Securities: $200,000,000
Maturity Date: June 15, 2005
Interest Rate: 9.750%
Interest June 15 and
Payment Dates: December 15,
commencing December 15, 2000
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
Record Dates: June 1 and
December 1
Redemption Provisions: The Company may redeem the Securities in whole
or in part at a make-whole price as set forth in the
Prospectus Supplement.
Repayment Provisions: None.
Transfer Agent and Registrar: Chase Bank of Texas, National Association
Closing Date and Location: June 19, 2000
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, NY 10005
</TABLE>
The Securities are to be offered to the public at the Initial Public Offering
Price specified below, and to dealers at prices which represent concessions not
in excess of the Dealer Concession set forth below, and the Underwriters may
allow and such dealers may reallow concessions not in excess of the Reallowance
concession set forth below:
<TABLE>
<S> <C>
Initial Public Offering Price: 99.998% of the principal amount of the
Securities plus accrued interest, if any, from
June 19, 2000
Dealer Concession: 0.350% of the principal amount of the
Securities
Reallowance Concession: 0.250% of the principal amount of the
Securities
</TABLE>
The parties hereto acknowledge and agree that the Underwriters'
Information consists solely of the following information in any Preliminary
Prospectus and the Prospectus: the text following the bullet point on the right
hand side of the bottom of the cover page; the third paragraph of text under the
caption "Underwriting" in the Prospectus Supplement; the third sentence in the
fifth paragraph of text under the caption "Underwriting" in the Prospectus
Supplement; and the sixth paragraph of text under the caption "Underwriting" in
the Prospectus Supplement.
All provisions contained in the document entitled Centex Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated June 14,
2000, are herein incorporated by reference in their entirety and shall be deemed
to be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein, except that if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control.
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<PAGE> 4
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement as of the date first set forth above in the space set
forth below.
Very truly yours,
CHASE SECURITIES INC.
Acting on behalf of itself
and the several
Underwriters named herein
BANC OF AMERICA SECURITIES LLC
SALOMON SMITH BARNEY INC.
By: Chase Securities Inc.
By: /s/ Huw Richards
Name: Huw Richards
Title: Vice President
CENTEX CORPORATION
By: /s/ Leldon E. Echols
Name: Leldon E. Echols
Title: Chief Financial Officer
4
<PAGE> 5
CENTEX CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
June 14, 2000
From time to time, Centex Corporation, a Nevada corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions hereof set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions hereof incorporated therein by reference, is
herein sometimes referred to as this "Agreement". Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (file number 333-94221),
including a final prospectus, relating to its debt securities and has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a final prospectus supplement (the
"Prospectus Supplement") specifically relating to the Securities pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act").
The registration statement as amended at the date of the Underwriting Agreement,
including information, if any, deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act, is
hereinafter referred to as the "Registration Statement." The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "Preliminary Prospectus" means a preliminary prospectus
supplement specifically relating to the Securities, together with the Basic
Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "Preliminary Prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include the filing of
all documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Underwriting Agreement by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). If the Company has filed an abbreviated registration statement
to register additional debt securities pursuant to Rule 462(b) under the
Securities Act (the "Rule 462(b) Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement. For purposes of this Agreement, "Effective Time"
means the date and time the Registration Statement became effective.
1. Representations and Warranties. The Company makes the following
representations and warranties to and agrees with the several Underwriters on
and as of the date of the Underwriting Agreement and will, by this Agreement,
make the following representations and warranties on and as of the Closing Date:
(a) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or, to the knowledge of the Company, threatened by the Commission.
<PAGE> 6
(b) The documents incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus (the "Exchange Act
Reports"), when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder and none of such documents (as updated or
superseded by the information in the Prospectus) contained an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements in the Prospectus, in light of the circumstances under which they
were made, not misleading, and any further documents so filed and incorporated
by reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to a state a material fact necessary to
make the statements in the Prospectus, in light of the circumstances under which
they were made, not misleading.
(c) At the Effective Time, the Registration Statement did, and when
the Prospectus is first filed in accordance with Rule 424(b) and on the Closing
Date, the Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations of the Commission thereunder (the "Rules and Regulations") and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder; at the Effective Time, the
Registration Statement did not or will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; at the
Effective Time and on the Closing Date, the Indenture did or will conform in all
material respects with the applicable requirements of the Trust Indenture Act
and the rules and regulations of the Commission thereunder; and, on the date of
the Prospectus and on the Closing Date, the Prospectus (together with any
supplement thereto) did not and will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or
(ii) information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Underwriter
specifically for use therein, which is set forth in the Underwriting Agreement
(the "Underwriters' Information").
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, resulting in a material adverse effect on the business, assets,
financial position or prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect"), otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise set
forth or contemplated in the Prospectus: (i) there has not been any material
change
2
<PAGE> 7
in the capital stock or long-term debt of the Company or any of its Material
Subsidiaries (as defined below); (ii) there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the business, assets, financial position or prospects of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; (iii) no event has occurred that would result in
a material write-down in assets; (iv) there have been no material transactions
entered into by the Company, other than those publicly disclosed or in the
ordinary course of business; (v) the Company has not repurchased any of its
outstanding capital stock except as set forth in or contemplated by the
Prospectus; and (vi) there have been no dividends or distributions of any kind
declared, paid or made by the Company in respect of its capital stock except for
regular cash dividends paid in the ordinary course of business;
(e) The Company and its subsidiaries have indefeasible title in fee
simple to all real property and indefeasible title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as are not
material to the business of the Company and its subsidiaries, taken as a whole;
and any real property and buildings held under lease by the Company and its
subsidiaries are held by them under leases that are valid, subsisting and in
full force and effect, with such exceptions as are not material to the business
of the Company and its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Nevada. Each
subsidiary of the Company that is material to the business, assets or financial
position of the Company and its subsidiaries, taken as a whole ("Material
Subsidiary"), is set forth on Schedule I hereto. Each Material Subsidiary has
been duly incorporated (if a corporation) or formed (if a partnership or limited
liability company), and is validly existing as a corporation, partnership or
limited liability company, as the case may be, in good standing (if applicable)
under the laws of its jurisdiction of incorporation or formation, as the case
may be; each of the Company and each Material Subsidiary has all necessary
corporate, partnership or limited liability company power and authority to own
its properties and conduct its business as described, or incorporated by
reference, in the Prospectus, and has been duly qualified as a foreign
corporation, or limited liability company, as the case may be, for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
(g) The Company has an authorized capitalization as set forth, or as
incorporated by reference, in the Prospectus, and all of the outstanding shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable; and all of the outstanding shares of
capital stock or outstanding interests of each Material Subsidiary have been
duly and validly authorized and issued, are fully paid and nonassessable and
(except (i) for directors' qualifying shares, (ii) as set forth on Schedule I
hereto or (iii) as otherwise set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims affecting transferability or voting except as set forth in the
Prospectus;
3
<PAGE> 8
(h) The Securities have been duly authorized, and, when executed,
authenticated, issued and delivered against payment therefor pursuant to this
Agreement and the Indenture, the Securities will be duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles, and entitled to
the benefits provided by the Indenture, which has been or will be incorporated
by reference as an exhibit to the Registration Statement; at the Closing Date,
the Indenture will be duly authorized, executed and delivered by the Company and
will be a valid and legally binding instrument, enforceable against the Company
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and the
Securities and the Indenture are substantially in the form heretofore delivered
to the Underwriters and will conform in all material respects to the
descriptions thereof in the Prospectus; and each holder of Securities will be
entitled to the benefits of the Indenture;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and this
Agreement (collectively, the "Transaction Documents"), and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation, as amended or restated, or the
Bylaws of the Company or any of its Material Subsidiaries or any statute or
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issuance and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this Agreement or the
Indenture, except such as have been, or will have been prior to any delivery of
the Securities, obtained under the Securities Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject that, if determined adversely to the Company or
any of its subsidiaries, could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(k) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the Rules and Regulations;
4
<PAGE> 9
(l) The Company has no knowledge of any default in any material
obligation to be performed by any party to any agreement to which it or any of
its subsidiaries is a party, which default or defaults in the aggregate would
have a Material Adverse Effect;
(m) The consolidated financial statements of the Company and its
subsidiaries, including accompanying notes, included or incorporated by
reference in the Registration Statement and the Prospectus, comply in all
material respects with the requirements of the Securities Act and fairly present
in all material respects the consolidated financial position and the
consolidated results of the operations of the Company and its subsidiaries at
the respective dates and for the respective periods to which they apply, and
such financial statements have been prepared in conformity with generally
accepted accounting principles of the United States, consistently applied
throughout the periods involved except as may be expressly stated in the notes
thereto. The financial information and statistical data set forth in the
Prospectus under the caption "Summary of Selected Financial Data" are fairly
presented in all material respects and prepared on a basis consistent with such
consolidated financial statements or the books and records of the Company, as
the case may be, unless otherwise stated in the Prospectus;
(n) Except as described in the Prospectus, the Company and each of its
subsidiaries have all necessary licenses, certificates, consents, permits,
authorizations, approvals, rights and orders of and from all governmental
agencies or bodies having jurisdiction over the Company or any of its
subsidiaries to own their respective properties and conduct their respective
businesses as described in the Prospectus, the failure to possess or the failure
to operate in compliance with which would have a Material Adverse Effect, and
the Company has received no notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit that, singly or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect;
(o) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, in each
case, as to enforcement, to bankruptcy, insolvency, reorganization, and other
laws of general applicability relating to or affecting creditors' rights, and to
general equity principles, and except to the extent that rights of
indemnification and contribution hereunder may be limited by applicable laws or
equity principles;
(p) Except as described in the Prospectus, and except for those the
failure to own or possess would not have a Material Adverse Effect, each of the
Company and its subsidiaries owns or possesses all of the patents, trademarks,
service marks, trade names, copyrights and licenses and rights with respect to
the foregoing, necessary for the present conduct of its business, without any
known conflict with the rights of others, the result of which conflict would
result in a Material Adverse Effect;
(q) There are no contracts, indentures, mortgages, loan agreements,
notes, bonds, debentures, other evidences of indebtedness, leases or other
agreements or instruments of the Company of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or referred to or
that have not or will not be, prior to the Closing Date, filed as required;
5
<PAGE> 10
(r) No labor disturbance exists with the employees of the Company or
any of its subsidiaries, or, to the best of the Company's knowledge, is
imminent, that would result in a Material Adverse Effect and the Company has not
received notice of any existing or imminent labor disturbance by the employees
of any of its principal suppliers, that might reasonably be expected to result
in a Material Adverse Effect;
(s) The conditions to the use of a registration statement on Form S-3
under the Securities Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Company and the Registration Statement
and Prospectus; and
(t) Neither the Company nor any of its subsidiaries is required to be
registered under the Investment Company Act of 1940, as amended.
Any certificate signed by any director or officer of the Company and
delivered to the Underwriters or their counsel in connection with the offering
of Securities shall be deemed a representation and warranty by the Company to
the Underwriters as to the matters covered thereby on the date of such
certificate.
2. Purchase of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein and in the Underwriting Agreement, the
Company agrees to issue and sell to each of the Underwriters, severally and not
jointly, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, the principal amount of Securities set forth opposite
the name of such Underwriter in the Underwriting Agreement at the purchase price
set forth in the Underwriting Agreement.
(b) The Company shall not be obligated to deliver any of the
Securities except upon payment for all of the Securities to be purchased as
provided herein. The Company acknowledges and agrees that the Underwriters may
sell Securities to any affiliate of an Underwriter and that any such affiliate
may sell Securities purchased by it to an Underwriter.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made on the Closing Date at the time and
place set forth in the Underwriting Agreement.
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire transfer in immediately
available funds, against delivery to the Underwriters of the certificates
evidencing the Securities. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligations of the Underwriters hereunder. Upon delivery, the Securities
shall be in global form, registered in such names and in such denominations as
the Representative on behalf of the Underwriters shall have requested in writing
not less than one full business day prior to the Closing Date. The Company
agrees to make one or more global certificates evidencing the Securities
available for inspection by the Representative on behalf of the Underwriters in
New York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company agrees with each of
the several Underwriters:
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<PAGE> 11
(a) (i) to prepare a Rule 462(b) Registration Statement, if
necessary, in a form approved by the Underwriters and to file such
Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) of the Rules and Regulations by 10:00 a.m. New York
City time on the business day following the date of determination of
the public offering price and, at the time of filing, either to pay
the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) of the Rules and Regulations and (ii) to file
the Prospectus with the Commission pursuant to and in accordance with
Rule 424(b) within the time period prescribed by such rule and to
provide evidence satisfactory to the Underwriters of such timely
filing;
(b) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus Supplement and
for so long as the delivery of a Prospectus is required by law in
connection with the offering of the Securities contemplated by the
Prospectus Supplement;
(c) prior to filing with the Commission any (i) amendment to the
Registration Statement (including any Rule 462(b) Registration
Statement) or supplement to the Prospectus relating to the Securities,
(ii) document incorporated by reference in the Registration Statement
or the Prospectus during the period from the date of this Agreement to
the Closing Date or (iii) Prospectus relating to the Securities
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representative and counsel for the Underwriters, and
not to file any such document to which the Representative shall
reasonably object after having been given reasonable notice of the
proposed filing thereof unless the Company is required by law to make
such filing;
(d) to advise the Underwriters promptly of the receipt of any
comments from the Commission and of the effectiveness of the
Registration Statement (in each case if the Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplement to the Registration Statement or the
Prospectus relating to the Securities, or of any request by the
Commission therefor, and of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose; to advise the
Underwriters promptly of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction and of the initiation or threatening of any proceeding
for any such purpose; and, for so long as the delivery of a prospectus
is required by law in connection with the offering of the Securities
contemplated by the Prospectus Supplement, to use every reasonable
effort to prevent the issuance of any stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification and, if any such stop
order or order or suspension is issued, to use every reasonable effort
to obtain the lifting thereof at the earliest possible time;
(e) to furnish promptly to each of the Underwriters and counsel
for the Underwriters a copy of the Registration Statement as
originally filed with the
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<PAGE> 12
Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith; and to deliver
promptly without charge to the Underwriters such number of the
following documents as the Underwriters may from time to time
reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement, the Indenture
and the computation of the ratio of earnings to fixed charges), (ii)
each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus and (iii) each document incorporated by
reference in the Prospectus (excluding exhibits thereto), in the case
of clause (i), (ii) or (iii) for so long as delivery of a prospectus
is required by law in connection with the offering of the Securities
contemplated by the Prospectus Supplement;
(f) if the delivery of a prospectus is required by law at any
time in connection with the offering of the Securities contemplated by
the Prospectus Supplement and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or if for
any other reason it shall be necessary or advisable at such time to
amend or supplement the Prospectus in order to comply with the
Securities Act or the Exchange Act or with a request from the
Commission, to notify the Underwriters immediately thereof, and to
promptly prepare and, subject to Section 4(c) hereof, file with the
Commission an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance;
(g) as soon as practicable to make generally available to the
Company's security holders and to deliver to the Underwriters an
earning statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule
158);
(h) for so long as the Securities are outstanding, to furnish to
the Underwriters copies of any annual reports, quarterly reports and
current reports filed by the Company with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated
by the Commission, and such other documents, reports and information
as shall be furnished by the Company to the Trustee or to the holders
of the Securities pursuant to the Indenture or the Exchange Act or any
rule or regulation of the Commission thereunder;
(i) promptly take from time to time such actions as the
Underwriters may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and to continue such
qualifications in effect for so long as required for the resale of the
Securities; provided that the Company and its subsidiaries shall not
be obligated to qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to file a general consent to
service of process in any jurisdiction;
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<PAGE> 13
(j) until the Closing Date, not to offer for sale, sell, contract
to sell or otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale, contract for
sale of or other disposition of any debt securities issued or
guaranteed by the Company or any of its subsidiaries (other than the
Securities, notes issued pursuant to the Company's medium-term note
program or any commercial paper program of the Company, or existing or
future bank credit facilities or asset securitizations of the Company
or any of its affiliates) without the prior written consent of the
Representative on behalf of the Underwriters;
(k) in connection with the offering of the Securities, until the
distribution of the Securities has been completed, the Company shall
not, and shall cause its affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one
or more other persons, bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any
Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause its affiliated purchasers not to,
make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Securities; and
(l) to apply the net proceeds from the sale of the Securities as
set forth in the Prospectus under the heading "Use of Proceeds".
5. Conditions of Underwriters' Obligations. The respective obligations
of the several Underwriters to purchase the Securities hereunder are subject to
the accuracy, on and as of the date of the Underwriting Agreement and the
Closing Date, of the representations and warranties of the Company contained
herein, to the accuracy of the statements of the Company and its officers made
in any certificates delivered pursuant hereto, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 4(a) of this Agreement, and, if
applicable, the Rule 462(b) Registration Statement shall have become
effective by 10:00 a.m. New York City time on the business day
following the date of the Underwriting Agreement. Prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or the Exchange Act Reports shall have been complied with to the
reasonable satisfaction of the Underwriters.
(b) The Prospectus (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Underwriters as
promptly as practicable on or following the date of the Underwriting
Agreement or at such other date and time as to which the Underwriters
may agree.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction
Documents and the Prospectus, and all other legal matters relating to
the Transaction Documents and the transactions contemplated thereby,
shall be reasonably satisfactory in all material respects
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<PAGE> 14
to the Underwriters, and the Company shall have furnished to the
Underwriters all documents and information that they or their counsel
may reasonably request to enable them to pass upon such matters.
(d) Raymond G. Smerge, Executive Vice President, Chief Legal
Officer and Secretary of the Company, shall have furnished to the
Underwriters his written opinion, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters, substantially to the effect set forth in Annex A
hereto.
(e) Baker Botts L.L.P. shall have furnished to the Underwriters
their written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters, substantially to the
effect set forth in Annex B hereto.
(f) The Underwriters shall have received from Milbank, Tweed,
Hadley & McCloy LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, as are customarily delivered by
underwriters' counsel in similar offerings and as the Underwriters may
reasonably require, and the Company shall have furnished to such
counsel such documents and information as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriters a letter
(the "Initial Letter") of Arthur Andersen LLP, addressed to the
Underwriters and dated as of the date of the Underwriting Agreement,
in form and substance reasonably satisfactory to the Underwriters,
substantially to the effect set forth in Annex C hereto.
(h) The Company shall have furnished to the Underwriters a letter
(the "Bring-Down Letter") of Arthur Andersen LLP, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are
independent accountants with respect to the Company and its
subsidiaries as required by the Securities Act and the Rules and
Regulations, (ii) stating, as of the date of the Bring-Down Letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than three business
days prior to the date of the Bring-Down Letter), that the conclusions
and findings of such accountants with respect to the financial
information and other matters covered by the Initial Letter are
accurate and (iii) confirming in all material respects the conclusions
and findings set forth in the Initial Letter.
(i) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its chief executive officer
and its chief financial officer stating that (A) such officers have
carefully examined the Registration Statement and the Prospectus, (B)
in their opinion, the Registration Statement, including the documents
incorporated therein by reference, as of the Effective Time, did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and the
Prospectus, including the documents incorporated therein by reference,
as of the date of the Prospectus Supplement and as of the Closing
Date, did not and does not include any
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<PAGE> 15
untrue statement of a material fact and did not and does not omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (C) as of the Closing Date, the representations
and warranties of the Company in this Agreement are true and correct
in all material respects, the Company has complied in all material
respects with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder on or prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or, to such officer's knowledge, are contemplated by
the Commission, and subsequent to the date of the most recent
financial statements contained in the Prospectus, there has been no
material adverse change in the financial position or results of
operations of the Company and its subsidiaries, taken as a whole, or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations or business of the
Company and its subsidiaries, taken as a whole, except as set forth in
the Prospectus.
(j) The Indenture and any applicable supplement thereto, shall
have been duly executed and delivered by the Company and the Trustee,
and the Securities shall have been duly executed and delivered by the
Company and duly authenticated by the Trustee.
(k) If any event shall have occurred on or prior to the Closing
Date that requires the Company under Section 4(f) to prepare an
amendment or supplement to the Prospectus, such amendment or
supplement shall have been prepared, the Underwriters shall have been
given a reasonable opportunity to comment thereon as provided in
Section 4(c) hereof, and copies of the Prospectus as amended or
supplemented, shall have been delivered to the Underwriters reasonably
in advance of the Closing Date.
(l) Subsequent to the execution and delivery of the Underwriting
Agreement or, if earlier, the dates as of which information is given
in the Registration Statement (exclusive of any amendment thereto that
becomes effective on or after the date of this Agreement) and the
Prospectus (exclusive of any supplement thereto that is filed with the
Commission on or after the date of this Agreement), except as
disclosed in or contemplated by the Prospectus, there shall not have
been any change in the capital stock or long-term debt or any change,
or any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations or business
of the Company and its subsidiaries taken as a whole, the effect of
which, in any such case described above, is, in the reasonable
judgment of the Representative on behalf of the Underwriters, so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering of the Securities on the terms and in
the manner contemplated by this Agreement and the Prospectus
(exclusive of any supplement thereto that is filed with the Commission
on or after the date of this Agreement).
(m) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any federal or state
court of
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<PAGE> 16
competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance or sale of the Securities.
(n) Subsequent to the execution and delivery of the Underwriting
Agreement (i) no downgrading shall have occurred in the rating
accorded the Securities or any of the Company's other debt securities
or preferred stock by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes
of Rule 436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Securities or
any of the Company's other debt securities or preferred stock.
(o) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American
Stock Exchange or the over-the-counter market shall have been
suspended or materially limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any
such exchange or by any other regulatory body or governmental
authority having jurisdiction (other than as a result of the existence
of or triggering of automatic circuit-breakers by such exchanges or
regulatory bodies), or trading in any securities of the Company on any
exchange or in the over-the-counter market shall have been suspended
or (ii) any moratorium on commercial banking activities shall have
been declared by federal or New York state authorities or (iii) an
outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or (iv) a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) the effect of which, in the case of
clauses (i) through (iv), is, in the reasonable judgment of the
Representative on behalf of the Underwriters, so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the sale or the delivery of the Securities on the terms
and in the manner contemplated by this Agreement and in the Prospectus
(exclusive of any supplement thereto that is filed with the Commission
on or after the date of this Agreement).
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters, in their absolute discretion, by notice given to
and received by the Company prior to delivery of and payment for the Securities
if, prior to that time, any of the events described in Section 5(l), (m), (n) or
(o) shall have occurred and be continuing.
7. Defaulting Underwriters. (a) If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the non-defaulting Underwriters may make arrangements for the purchase of the
Securities which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters or the
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<PAGE> 17
Company, except that the Company will continue to be liable for the payment of
expenses to the extent set forth in Section 12 and except that the provisions of
Sections 9 and 10 shall not terminate and shall remain in effect. As used in
this Agreement, the term "Underwriters" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in the
Underwriting Agreement that, pursuant to this Section 7, purchases Securities
which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Securities of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in the Registration
Statement and the Prospectus or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such changes.
8. Reimbursement of Underwriters' Expenses. If (a) this Agreement
shall have been terminated pursuant to Section 6 as a result of the failure of a
condition set forth in Sections 5(l) or 5(n) to be satisfied, (b) the Company
shall fail to tender the Securities for delivery to the Underwriters in
contravention of its obligations under this Agreement or (c) the Underwriters
shall not purchase the Securities as a result of the failure of a condition set
forth in Sections 5(a), (b), (d), (e), (g), (h), (i), (j) or (k) to be
satisfied, the Company shall reimburse the Underwriters for such out-of-pocket
expenses (including reasonable fees and disbursements of counsel up to a maximum
of $100,000) as shall have been reasonably incurred by the Underwriters in
connection with this Agreement and the proposed public offering and sale of the
Securities, and upon demand the Company shall pay the full amount thereof to the
Underwriters.
9. Indemnification. (a) The Company shall indemnify and hold harmless
each Underwriter, its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(a) and Section 10 as an
Underwriter), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and shall reimburse each
Underwriter promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or
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<PAGE> 18
is based upon, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with any Underwriters' Information; and provided, further, that with respect to
any such untrue statement in or omission from any Preliminary Prospectus, the
indemnity agreement contained in this Section 9(a) shall not inure to the
benefit of any such Underwriter to the extent that the sale to the person
asserting any such loss, claim, damage, liability or action was an initial
resale by such Underwriter and any such loss, claim, damage, liability or action
of or with respect to such Underwriter results from the fact that both (A) to
the extent required by applicable law, a copy of the Prospectus (excluding the
documents incorporated by reference therein) was not sent or given to such
person at or prior to the written confirmation of the sale of such Securities to
such person and (B) the untrue statement in or omission from such Preliminary
Prospectus was corrected in the Prospectus unless, in either case, such failure
to deliver the Prospectus was a result of non-compliance by the Company with
Section 4(e).
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who signed the Registration Statement,
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 9(b) and Section 10 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with any Underwriters' Information
provided by such Underwriter, and shall reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or
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<PAGE> 19
action, the indemnifying party shall not be liable to the indemnified party
under this Section 9 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that an indemnified party
shall have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual
differing interests between them, (3) a conflict or potential conflict exists
(based upon advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent, but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
The obligations of the Company and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability that the
Company or the Underwriters, as the case may be, may otherwise have, including
in respect of any breaches of representations, warranties and agreements made
herein by any such party.
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions that
resulted in
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<PAGE> 20
such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Securities purchased under this Agreement
(before deducting expenses) received by or on behalf of the Company, on the one
hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under this Agreement, on
the other, bear to the total gross proceeds from the sale of the Securities
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus Supplement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to the Company or information supplied by the Company on the one hand or
to any Underwriters' Information on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 10 were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10 shall be deemed to include, for purposes of
this Section 10, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing to
defend any such action or claim. Notwithstanding the provisions of this Section
10, no Underwriter shall be required to contribute any amount in excess of the
amount by which the total initial public offering price of the Securities
underwritten by it and sold to the public under this Agreement exceeds the
amount of any damages which such Underwriter has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 10 are several in proportion to their respective underwriting
commitments and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except as provided in Sections 9
and 10 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Company and the
Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
12. Expenses. The Company agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
printing and distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case,
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<PAGE> 21
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement thereto, all as provided in this Agreement; (d) the costs of
printing, reproducing and distributing the Indenture, this Agreement and any
underwriting documents; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Securities; (f) the fees and expenses of the Company's counsel and
independent accountants; (g) the fees and expenses of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of counsel
to the Underwriters up to a maximum of $5,000); (h) any fees charged by rating
agencies for rating the Securities; (i) all fees and expenses of the Trustee and
any paying agent (including related fees and expenses of any counsel to such
parties); and (j) all other costs and expenses incident to the performance of
the obligations of the Company under this Agreement; provided that, except as
provided in clause (g) of this Section 12 and Section 8, the Underwriters shall
pay their own costs and expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any of them or
any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or
telecopy transmission to the Representative at the address set forth
in the Underwriting Agreement; or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Registration Statement, Attention: Vicki Roberts (telecopier no.:
214-981-6858).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representative.
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 of the Rules and
Regulations.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one
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<PAGE> 22
counterpart, the executed counterparts shall each be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
18. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The rest of this page intentionally left blank.]
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SCHEDULE I
MATERIAL SUBSIDIARIES
---------------------
<TABLE>
<S> <C>
Centex International, Inc. Nevada corporation
Centex Real Estate Corporation Nevada corporation
Centex Homes Nevada general partnership
Cavco Industries, LLC Delaware limited liability company
CRG Holdings, LLC Delaware limited liability company
Centex Financial Services, Inc. Nevada corporation
Centex Credit Corporation Nevada corporation
CTX Mortgage Company Nevada corporation
Centex Construction Products, Inc.* Delaware corporation
Centex Construction Group, Inc. Nevada corporation
Centex-Rooney Construction Co., Inc. Florida corporation
Centex Rodgers, Inc. Nevada corporation
Centex Construction Company, Inc. Nevada corporation
Centex Forcum Lannom, Inc. Nevada corporation
</TABLE>
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* Centex Corporation owned 64.4% of Centex Construction Products, Inc. as of
March 31, 2000.
<PAGE> 24
ANNEX A
[Form of Opinion of Executive Vice President, Chief Legal Officer
and Secretary of the Company]
Raymond G. Smerge, Executive Vice President, Chief Legal Officer and
Secretary of the Company, shall have furnished to the Underwriters his written
opinion, addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, substantially to the
effect set forth below:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to perform its obligations
under the Underwriting Agreement.
2. The Company has the necessary corporate power and authority to
execute and deliver each of the Transaction Documents and to perform its
obligations thereunder; the Securities and each of the Transaction
Documents have been duly authorized, executed and delivered by the Company.
3. The Company has an authorized capitalization as set forth in the
Prospectus and all of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and nonassessable.
4. The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
jurisdiction in which the Company is required to so qualify, except where
to the failure to so qualify or be in good standing would not have a
material adverse effect upon the Company and its subsidiaries, taken as a
whole.(1)
5. Each Material Subsidiary of the Company has been duly incorporated
(if a corporation) or duly formed (if a partnership or a limited liability
company) and is validly existing as a corporation, partnership or limited
----------------------
(1) In giving such opinion, such counsel may state that (i) in
identifying the jurisdictions in which the Company transacts business or
conducts activities that would require it to qualify as a foreign corporation,
he has relied to a large extent on certificates of other officers of the Company
and (ii) in determining whether the Company is qualified to do business as a
foreign corporation and in good standing under the laws of such jurisdictions,
he has relied solely on certificates of the secretary of state or other
comparable governmental authority of such jurisdictions.
<PAGE> 25
liability company, as the case may be, in good standing (if applicable, in
the case of a partnership or limited liability company) under the laws of
its jurisdiction of incorporation or formation, as the case may be; all of
the issued shares of capital stock, partnership interests or membership
interests, as the case may be, of each Material Subsidiary have been duly
and validly authorized and issued, are fully paid and nonassessable
(subject, in the case of any partnership interest or limited liability
interest, to obligations or commitments to make future capital
contributions), and (except (i) for directors' qualifying shares and
interests, (ii) as set forth on Schedule I hereto or (iii) as otherwise set
forth in the Prospectus) are, to the best of my knowledge, owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims affecting transferability or voting.
6. To the best of my knowledge and other than as set forth or
contemplated, or incorporated by reference, in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which (A) individually or
in the aggregate, could reasonably be expected to have a material adverse
effect on the business, assets or financial position of the Company and its
subsidiaries, taken as a whole; or (B) question the validity or
enforceability of any of the Transaction Documents or any action taken or
to be taken pursuant thereto; and, to the best of my knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
7. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
8. The issuance, authentication, sale and delivery of the Securities
and the compliance by the Company with all of the provisions of the
Transaction Documents and the consummation of the transactions therein
contemplated will not violate or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to me to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, except for any such violation, breach, default, lien, charge or
encumbrance that would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, nor will such action result in any
violation of (A) the provisions of the Articles of Incorporation, as
amended or restated, or
<PAGE> 26
the Bylaws of the Company or any Material Subsidiary, (B) any judgment,
order or decree known to me of any court or arbitrator or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets or (C) any statute, rule
or regulation of the United States, the State of Texas or the State of
Nevada (it being understood that I express no opinion as to compliance with
any state securities or federal or state anti-fraud statute, rule or
regulation, except as otherwise expressly stated in this opinion)
applicable to the Company or any of its subsidiaries or any of their
properties or assets, except in the case of clause (B) or (C) for any such
violations which would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
9. No consent, approval, authorization or order of, or filing or
registration with, any court or arbitrator or governmental agency or body
of the State of Nevada is required for the execution, delivery and
performance by the Company of each of the Transaction Documents, the
issuance, authentication, sale and delivery of the Securities and
compliance by the Company with the terms thereof and the consummation of
the transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, registrations or
qualifications (i) which have been obtained or made prior to or on the
Closing Date or (ii) as may be required to be obtained or made under
applicable state securities laws in connection with the purchase and
distribution of the Securities by the Underwriters.
The documents incorporated by reference in the Prospectus, as
amended or supplemented (other than the financial statements and the other
financial information and related schedules included or incorporated by
reference therein, as to which I express no opinion), when they were filed
with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; nothing has come to my attention that would cause me
to believe that any such documents, when they were so filed (other than the
financial statements and the other financial information and related
schedules included or incorporated by reference therein, as to which I
express no belief), contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when such
documents were so filed, not misleading; and I do not know of any contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus or required to be
<PAGE> 27
described in the Registration Statement or the Prospectus that are not
filed or incorporated by reference or described as required.
In the course of participating in the preparation of the
Registration Statement and the Prospectus, I have had conferences to discuss and
review the contents thereof with various officers of the Company and its
affiliates, with the Company's independent certified public accountants and with
your representatives. I have no reason to believe that as of the date of this
opinion and as of the effective date of the Registration Statement, the
Registration Statement (other than the financial statements and the other
financial information and related schedules, as to which I express no belief,
and except for those parts of the Registration Statement that constitute the
Form T-1), contains or contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of the date hereof, the
Prospectus (other than the financial statements and the other financial
information and related schedules, as to which I express no belief), contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
<PAGE> 28
ANNEX B
[Form of Opinion of Counsel for the Company]
Baker Botts L.L.P. shall have furnished to the Underwriters their
written opinion, as special counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth below:
1. The Securities have been duly authorized by the Company and, when
authenticated and delivered in accordance with the terms of the Indenture
against payment therefor as provided in the Underwriting Agreement, will be
duly issued and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture and
enforceable against the Company in accordance with their respective terms,
subject to the Enforceability Exceptions (as hereinafter defined). The
Securities, in the form certified by the Company as of the date hereof, and
Indenture conform in all material respects to the descriptions thereof set
forth under the captions "Description of Debt Securities" and "Description
of Notes" in the Prospectus.
2. The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a valid and legally binding obligation
of the Company, enforceable against the Company in accordance with its
terms, subject to the Enforceability Exceptions. The Indenture has been
qualified under the Trust Indenture Act.
3. To our knowledge, no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body of the United States of America or the State of Texas is required
for the performance by the Company of its obligations under the
Underwriting Agreement, for the issue and sale of the Securities or the
consummation of the other transactions contemplated by the Underwriting
Agreement or the Indenture, except such as have been obtained under the
Securities Act and the Trust Indenture Act, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the state securities or Blue Sky laws in connection with the purchase and
sale of the Securities by the Underwriters.
4. To our knowledge, no proceedings for a stop order with respect to
the Registration Statement are pending or threatened under the Securities
Act. Based solely on written confirmation received electronically through
the EDGAR system, the Prospectus Supplement dated June __, 2000 was filed
on such date with the Commission pursuant to Rule 424(b) of the Rules and
Regulations.
5. The Registration Statement and Prospectus (except for (i) the
financial statements (including the notes thereto and the auditors' reports
thereon) included or incorporated by reference therein, (ii) the other
financial information included or incorporated by reference
<PAGE> 29
therein, or (iii) the Statements of Eligibility under the Trust Indenture
Act of a corporation designated to act as trustee, on Form T-1, as to which
we express no opinion) appear on their face to comply as to form in all
material respects with the applicable requirements of the Securities Act
and the Rules and Regulations of the Commission thereunder.
Such counsel shall also state in a separate paragraph, the following:
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants of the Company and your representatives at which the contents of the
Registration Statement and the Prospectus and related matters were discussed.
Although we did not independently verify, are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus or the
responsiveness of such statements to the legal requirements (except to the
extent stated in the last sentence of paragraph 1 above and in paragraph 5
above), we advise you that, on the basis of the foregoing (relying as to
materiality in part upon officers and other representatives of the Company), no
facts have come to our attention which lead us to believe that the Registration
Statement (other than (i) the financial statements (including the notes thereto
and the auditors reports thereon) included therein, (ii) the other financial
information included therein, or (iii) the Statements of Eligibility under the
Trust Indenture Act of a corporation designated to act as trustee, on Form T-1,
as to which we have not been asked to comment), as of the time it became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (other than (i) the
financial statements (including the notes thereto and the auditors report
thereon) included therein, (ii) the other financial information included
therein, or (iii) the Statements of Eligibility under the Trust Indenture Act of
a corporation designated to act as trustee, on Form T-1, as to which we have not
been asked to comment), as of the issue date thereof and as of the date hereof,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
As used in the foregoing, opinion, references to the "Enforceability
Exceptions" mean that the applicable opinions are subject to the effect of (i)
applicable bankruptcy, receivership, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer and other similar laws relating to or
affecting the enforcement of the rights and remedies of creditors or parties to
executory contracts generally; (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity)
and the exercise of equitable powers by a court of competent jurisdiction (and
no opinion is given as to the availability of any specific equitable relief or
equitable remedies); and (iii) applicable law or public policy limiting the
enforcement of provisions providing for the indemnification of any person.
<PAGE> 30
ANNEX C
[Form of Initial Comfort Letter]
The Company shall have furnished to the Underwriters a letter of
Arthur Andersen LLP, addressed to the Underwriters and dated the date of
delivery thereof, in form and substance satisfactory to the Underwriters,
substantially to the effect set forth below:
1. they are independent certified public accountants with respect to
the Company as required by the Securities Act and the Rules and
Regulations;
2. in their opinion, the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
and reported on by them comply in form in all material respects with the
accounting requirements of the Securities Act, the Rules and Regulations,
the Exchange Act and the rules and regulations promulgated under the
Exchange Act (except that certain supporting schedules are omitted);
3. based upon a reading of the latest unaudited financial statements
made available by the Company, if any, the procedures of the AICA for a
review of interim financial information as described in Statement of
Auditing Standards No. 71, reading of minutes and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters and certain other limited procedures requested by the
Underwriters and described in detail in such letter, nothing has come to
their attention that causes them to believe that any unaudited financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Securities Act, the
Rules and Regulations, the Exchange Act, and the rules and regulations
promulgated under the Exchange Act;
4. based upon the procedures detailed in such letter with respect to
the period subsequent to the date of the last available balance sheet,
including reading of minutes and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters,
nothing has come to their attention that causes them to believe that (A) at
a specified date not more than three business days prior to the date of
such letter, there was any change in capital stock, increase in long-term
debt or decrease in stockholder's equity as compared with the amounts shown
in the March 31, 2000 audited balance sheet included in the Registration
Statement and the Prospectus or (B) for the period from March 31, 2000 to a
specified date not more than three business days prior to the date of such
letter, there were any decreases, as compared with the corresponding period
in the preceding year, in net sales, or in total or per-share amounts of
net income, except in all instances for changes, increases or decreases
that the Prospectus discloses have occurred or which are set forth in such
letter, in which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said explanation is not
deemed necessary by the Underwriters; and
<PAGE> 31
5. they have performed certain other specified procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth or incorporated by reference in the Registration
Statement and the Prospectus agrees with the accounting records of the
Company, excluding any questions of legal interpretation.
