EXHIBIT 1.1
UNDERWRITING AGREEMENT
April 28, 2004
CENTEX CORPORATION
2728 North Harwood Street
Dallas, Texas 75201
Ladies and Gentlemen:
We (the "REPRESENTATIVES") 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 $350,000,000 aggregate principal amount of 5.700% Senior Notes due 2014
(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 has been or shall be supplemented to the
Closing Date (as defined herein), including by Indenture Supplement No. 14 to be
dated the Closing Date) (the "INDENTURE") between the Company and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), 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 99.212%
of the principal amount of Securities plus accrued interest, from May 5, 2004 to
the date of payment and delivery:
Principal Amount
Name of Underwriter of Securities
- ------------------------------ ----------------
Citigroup Global Markets Inc. 140,000,000
J.P. Morgan Securities Inc. 140,000,000
Banc of America Securities LLC 35,000,000
Credit Suisse First Boston LLC 35,000,000
-----------
Total 350,000,000
The Underwriters will pay for the Securities upon delivery thereof
at the location identified below at 10:00 a.m. (New York time) on May 5, 2004,
or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Company and the Representatives. 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 March 1, 2002 and the Prospectus Supplement dated April 28, 2004,
including the following:
Representative(s) and address(es):
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attn: Office of General Counsel
(telecopy no.: 212-816-0915)
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attn: High Grade Syndicate Desk
(telecopy no.: 212-834-6081)
Certain Terms of the Securities:
Title of Securities: 5.700% Senior Notes due 2014
Aggregate Principal Amount of Securities: 350,000,000
Maturity Date: May 15, 2014
Interest Rate: 5.700%
Interest May 15 and November 15,
Payment Dates: commencing November 15, 2004
Record Dates: May 1 and November 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: JPMorgan Chase Bank
Closing Date and Location: May 5, 2004
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, NY 10005
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:
Initial Public Offering Price: 99.862% of the principal amount of the
Securities plus accrued interest, if any,
from May 5, 2004
Dealer Concession: 0.40% of the principal amount of the
Securities
Reallowance Concession: 0.25% of the principal amount of the
Securities
The parties hereto acknowledge and agree that the Underwriters'
Information consists solely of the following information in any Preliminary
Prospectus and the Prospectus: the last sentence on the cover page regarding
delivery of the securities, the third, fifth, sixth and tenth paragraphs of text
under the caption "Underwriting" in the Prospectus Supplement and the third and
fourth sentences in the seventh 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 April 28,
2004, 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.
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,
CITIGROUP GLOBAL MARKETS INC.
Acting on behalf of itself and the several
Underwriters named herein
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
By: Citigroup Global Markets Inc.
By: /s/ Michael Weiss
------------------------
Name: Michael Weiss
Title: Vice President
CENTEX CORPORATION
By: /s/ Gail M. Peck
----------------------
Name: Gail M. Peck
Title: Vice President & Treasurer
CENTEX CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
April 28, 2004
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 333-83212),
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 (if any), 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;
(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, or any development involving a
prospective material adverse effect, on the business, assets or financial
position 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 in
the capital stock or long-term
2
debt (other than asset securitizations by subsidiaries of the Company) 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 or financial
position 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 in accordance with its
previously announced stock repurchase program; 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;
(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
3
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 or charter documents or certificate of formation or partnership agreement
(as the case may be) 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) Ernst &Young 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
(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 "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
(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(s) 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(s) 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:
6
(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(s)
and counsel for the Underwriters, and not to file any such document to
which the Representative(s) 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 Commission, and each amendment thereto filed with the
Commission, including all
7
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;
(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
8
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
programs 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(s) 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 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.
9
(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 Ernst & Young 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 Ernst & Young 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
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
10
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 (other than asset securitizations by
subsidiaries of the Company) 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(s)
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
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
11
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 a material disruption shall have occurred in commercial
banking or securities settlement or clearance services in the United
States 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 financial markets or any calamity or crisis or 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(s)
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 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
12
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 Section 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 Section 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 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
13
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 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
14
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 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
15
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, 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.
16
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(s) at the address(es) 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: Lawrence Angelilli (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(s).
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 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.
17
SCHEDULE I
MATERIAL SUBSIDIARIES
Centex International, Inc. Nevada corporation
Centex Real Estate Corporation Nevada corporation
Centex Homes Nevada general partnership
Centex Financial Services, Inc. Nevada corporation
Centex Home Equity Company, LLC Delaware limited liability company
CTX Mortgage Company, LLC Delaware limited liability company
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 Engineering & Construction, Inc. Nevada corporation
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 liability company, as the case may be, in good
standing (if applicable, in the
- -----------------------
(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.
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 the Bylaws of the Company or any Material
Subsidiary, (B) any judgment, order or decree known to me of any
2
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.
10. 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 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
3
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.
4
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
April [ ], 2004 was filed on April [ ], 2004 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 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 or (ii) the other financial information included
therein, 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.
2
ANNEX C
[Form of Initial Comfort Letter]
The Company shall have furnished to the Underwriters a letter of
Ernst &Young 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
AICPA for a review of interim financial information as described in
Statement of Auditing Standards No. 100 and 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, 2003 audited balance sheet included in the
Registration Statement and the Prospectus or (B) for the period from March
31, 2003 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
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.
2