EXHIBIT 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
June 1, 2005
CENTEX CORPORATION
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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 $450,000,000 aggregate principal amount of 5.25% Senior Notes due 2015 (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. 17 to be dated
the Closing Date) (the "INDENTURE") between the Company and JPMorgan Chase Bank,
N.A. (formerly known as The Chase Manhattan Bank and successor to Chase Bank of
Texas, National Association and Texas Commerce Bank 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 99.194%
of the principal amount of Securities plus accrued interest, from June 6, 2005
to the date of payment and delivery:
Principal Amount
Name of Underwriter of Securities
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Citigroup Global Markets Inc. 180,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 180,000,000
Banc of America Securities LLC 22,500,000
BNP Paribas Securities Corp. 22,500,000
Calyon Securities (USA) Inc. 22,500,000
Credit Suisse First Boston LLC 22,500,000
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Total: $450,000,000
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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 6, 2005,
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 August 3, 2004 and the Prospectus Supplement dated June 1, 2005, including
the following:
Representative(s) and address(es):
Citigroup Global Markets Inc.
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Attn: Office of General Counsel
(telecopy no.: 212-816-0915)
▇.▇. ▇▇▇▇▇▇ Securities Inc.
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Attn: High Grade Syndicate
(telecopy no.: 212-834-6081)
Certain Terms of the Securities:
Title of Securities: 5.25% Senior Notes due 2015
Aggregate Principal Amount of
Securities: 450,000,000
Maturity Date: June 15, 2015
Interest Rate: 5.250%
Interest June 15 and December 15,
Payment Dates: commencing December 15, 2005
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: JPMorgan Chase Bank, N.A.
Closing Date and Location: June 6, 2005
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
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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: 99.844% of the principal amount of the
Securities plus accrued interest, if
any, from June 6, 2005
Dealer Concession: 0.400% of the principal amount of the
Securities
Reallowance Concession: 0.250% 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 June 1, 2005,
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
CITIGROUP GLOBAL MARKETS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: Citigroup Global Markets Inc.
By: __________________________
Name:
Title:
CENTEX CORPORATION
By: _________________________
Name:
Title:
CENTEX CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
June 1, 2005
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 333-117470)
including a prospectus, relating to its debt and equity 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").
Such 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
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the Prospectus: (i) there has not been any material change in the capital stock
or long-term debt (other than any commercial paper program of the Company or
asset securitizations by the Company or 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 or pursuant to delivery, from time
to time, by employees or directors of previously issued shares to the Company to
satisfy the exercise price of options and/or withholding taxes that arise on the
exercise of options; 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 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) 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, partnership 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 such qualification is required, whether by
reason of the ownership or leasing of properties or the conduct of business,
except where it would be 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
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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 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, subject to the limitations as to
enforcement set forth above;
(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 could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; and,
4
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 has audited certain financial statements of the
Company and its subsidiaries, is an independent registered public accounting
firm as required by the Securities Act and the Rules and Regulations;
(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
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;
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(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;
(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
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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:
(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
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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 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 notify the
Underwriters of the filing by the Company of any annual reports or
quarterly reports with the Commission on Forms 10-K or 10-Q, 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;
8
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 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.
9
(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.
(d) ▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President and Chief Legal Officer of
the Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Corporate Counsel and
Assistant Secretary of the Company, or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Vice
President , Deputy General Counsel 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) ▇▇▇▇▇ ▇▇▇▇▇ 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, ▇▇▇▇▇▇
& ▇▇▇▇▇▇ 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 it is an
independent registered public accounting firm 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 accounting firm 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 financial officer or any
Vice President or Treasurer and its Secretary or any Assistant Secretary
stating that (A) such officers have carefully
10
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 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 any commercial paper
program of the Company or asset securitizations by the Company or
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
11
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 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) suspension or material
limitation of trading generally or the establishment of minimum prices on
or by, as the case may be, on the New York Stock Exchange, the American
Stock Exchange, the over-the-counter market, the National Association of
Securities Dealers, Inc. or 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), (ii) suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market, (iii)
declaration of a general moratorium on commercial banking activities by
federal or New York state authorities or a material disruption shall have
occurred in clearance or settlement systems in the United States, (iv) an
outbreak or escalation of hostilities, an act of terrorism occurring in
the United States or a declaration by the United States of a national
emergency or war or (v) a material adverse change in financial markets or
any calamity or crisis or change in general economic, political or
financial conditions (or an effect of international conditions on the
financial markets in the United States) that, in the case of any of the
events described in clauses (i) through (v), is material and adverse and
such event, singly or together with any other such event, makes it, in the
reasonable judgment of the Representative(s) on behalf of the
Underwriters, 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.
12
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
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 ▇▇▇▇▇▇▇ ▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) 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
13
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 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
14
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 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.
15
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 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.
16
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.
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: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (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
17
"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.
18
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
CITIGROUP GLOBAL MARKETS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
CENTEX CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President -- Finance
SCHEDULE I
MATERIAL SUBSIDIARIES
Centex Construction Group, Inc. Nevada corporation
Centex Construction, LLC Delaware limited liability company
Centex Financial Services, Inc. Nevada corporation
Centex Home Equity Company, LLC Delaware limited liability company
Centex Homes Nevada general partnership
Centex International, Inc. Nevada corporation
Centex Real Estate Corporation Nevada corporation
CTX Mortgage Company, LLC Delaware limited liability company
ANNEX A
[Form of Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President and Chief Legal
Officer of the Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Corporate Counsel and
Assistant Secretary of the Company, or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Vice President,
Deputy General Counsel and Secretary of the Company]
▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President and Chief Legal Officer of the
Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Corporate Counsel and Assistant
Secretary of the Company, or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Vice President , Deputy
General Counsel 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)
----------
(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.
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 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
2
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
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
3
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 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 of the
Prospectus and 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), contained or contains an untrue statement of a
material fact or omitted 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]
▇▇▇▇▇ ▇▇▇▇▇ 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
▇▇▇▇▇ system, the Prospectus Supplement dated June 1, 2005 was filed on June
2, 2005 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, 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. it is an independent registered public accounting firm with
respect to the Company as required by the Securities Act and the rules and
regulations adopted by the SEC and the Public Company Account Oversight
Board ("PCAOB");
2. in its opinion, the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
and reported on by it 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 PCAOB for a
review of interim financial information as described in AU 722 Interim
Financial Information, 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
its attention that causes it 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 its attention that causes it 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, 2005 audited balance sheet included in the Registration
Statement and the Prospectus or (B) for the period from March 31, 2005 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. it has performed certain other specified procedures as a result
of which it 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