EXHIBIT 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
January 23, 2003
CENTEX CORPORATION
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
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 $300,000,000 aggregate principal amount of 4.750% Senior Notes due 2008
(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. 12 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
99.258% of the principal amount of Securities plus accrued interest, from
January 28, 2003 to the date of payment and delivery:
Principal Amount
Name of Underwriter of Securities
------------------- ----------------
Xxxxxxx Xxxxx Xxxxxx Inc. $180,000,000
Banc of America Securities LLC 30,000,000
Credit Suisse First Boston LLC 30,000,000
X.X. Xxxxxx Securities Inc. 30,000,000
Banc One Capital Markets, Inc. 15,000,000
Credit Lyonnais Securities (USA) Inc. 15,000,000
Total $300,000,000
============
The Underwriters will pay for the Securities upon delivery
thereof at the location identified below at 10:00 a.m. (
New York time) on
January 28, 2003, 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 January 23,
2003, including the following:
Representative(s) and address(es):
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Office of General Counsel
(telecopy no.: 212-816-0915)
Certain Terms of the Securities:
Title of Securities: 4.750% Senior Notes due 2008
Aggregate Principal Amount of Securities: $300,000,000
Maturity Date: January 15, 2008
Interest Rate: 4.750%
Interest January 15 and
Payment Dates: July 15,
commencing July 15, 2003
Record Dates: January 1 and July 1
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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: January 28, 2003
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
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: 99.858% of the principal amount of the
Securities plus accrued interest, if any,
from January 28, 2003
Dealer Concession: 0.35% 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 third, fifth and sixth 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
January 23, 2003, 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.
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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,
XXXXXXX XXXXX XXXXXX INC.
Acting on behalf of itself and the
several Underwriters named herein
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CENTEX CORPORATION
By: /s/ XXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
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CENTEX CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
January 23, 2003
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, 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 debt
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(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 as set forth in or contemplated by the
Prospectus; and (vi) there have been no dividends or distributions of any kind
declared, paid or made by the Company in respect of its capital stock except for
regular cash dividends paid in the ordinary course of business;
(e) The Company and its subsidiaries have indefeasible title in fee
simple to all real property and indefeasible title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as are not
material to the business of the Company and its subsidiaries, taken as a whole;
and any real property and buildings held under lease by the Company and its
subsidiaries are held by them under leases that are valid, subsisting and in
full force and effect, with such exceptions as are not material to the business
of the Company and its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada. Each
subsidiary of the Company that is material to the business, assets or financial
position of the Company and its subsidiaries, taken as a whole ("Material
Subsidiary"), is set forth on Schedule I hereto. Each Material Subsidiary has
been duly incorporated (if a corporation) or formed (if a partnership or limited
liability company), and is validly existing as a corporation, partnership or
limited liability company, as the case may be, in good standing (if applicable)
under the laws of its jurisdiction of incorporation or formation, as the case
may be; each of the Company and each Material Subsidiary has all necessary
corporate, partnership or limited liability company power and authority to own
its properties and conduct its business as described, or incorporated by
reference, in the Prospectus, and has been duly qualified as a foreign
corporation, or limited liability company, as the case may be, for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
(g) The Company has an authorized capitalization as set forth, or as
incorporated by reference, in the Prospectus, and all of the outstanding shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable; and all of the outstanding shares of
capital stock or outstanding interests of each Material Subsidiary have been
duly and validly authorized and issued, are fully paid and nonassessable and
(except (i) for directors' qualifying shares, (ii) as set forth on Schedule I
hereto or (iii) as otherwise set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims affecting transferability or voting except as set forth in the
Prospectus;
(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
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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;
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(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;
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(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:
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(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
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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
8
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.
(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) Xxxxxxx X. Xxxxxx, 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) Xxxxx Xxxxx 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,
Xxxxxx & XxXxxx 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
10
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 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
11
Company's other debt securities or preferred stock by any "nationally
recognized statistical rating organization", as such term is defined by
the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review (other than an announcement
with positive implications of a possible upgrading), its rating of the
Securities or any of the Company's other debt securities or preferred
stock.
(o) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the
New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
materially limited, or minimum prices shall have been established on
any such exchange or market by the Commission, by any such exchange or
by any other regulatory body or governmental authority having
jurisdiction (other than as a result of the existence of or triggering
of automatic circuit-breakers by such exchanges or regulatory bodies),
or trading in any securities of the Company on any exchange or in the
over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
federal or
New York state authorities or 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"
12
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 Xxxxxxx 0(x), (x), (x), (x), (x), (x), (x), (x) 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
13
not inure to the benefit of any such Underwriter to the extent that the sale to
the person asserting any such loss, claim, damage, liability or action was an
initial resale by such Underwriter and any such loss, claim, damage, liability
or action of or with respect to such Underwriter results from the fact that both
(A) to the extent required by applicable law, a copy of the Prospectus
(excluding the documents incorporated by reference therein) was not sent or
given to such person at or prior to the written confirmation of the sale of such
Securities to such person and (B) the untrue statement in or omission from such
Preliminary Prospectus was corrected in the Prospectus unless, in either case,
such failure to deliver the Prospectus was a result of non-compliance by the
Company with Section 4(e).
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who signed the Registration Statement,
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 9(b) and Section 10 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with any Underwriters' Information
provided by such Underwriter, and shall reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 9(a) or 9(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 9. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or 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
14
party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual differing interests between them,
(3) a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent, but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
The obligations of the Company and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability that the
Company or the Underwriters, as the case may be, may otherwise have, including
in respect of any breaches of representations, warranties and agreements made
herein by any such party.
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions that
resulted in 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
15
respect to the Securities purchased under this Agreement, on the other, bear to
the total gross proceeds from the sale of the Securities under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus
Supplement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Company or
information supplied by the Company on the one hand or to any Underwriters'
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 10
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 10 shall be deemed to include, for purposes of this Section 10, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total initial public offering price of the Securities underwritten
by it and sold to the public under this Agreement exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 10 are
several in proportion to their respective underwriting commitments and not
joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except as provided in Sections 9
and 10 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Company and the
Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
12. Expenses. The Company agrees with the Underwriters to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
printing and distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, 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
16
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: Xxxxxxxx Xxxxxxxxx (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
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18
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 Products, Inc.* Delaware corporation
Centex Construction Group, Inc. Nevada corporation
Centex-Rooney Construction Co., Inc. Florida corporation
Centex Xxxxxxx, Inc. Nevada corporation
Centex Construction Company, Inc. Nevada corporation
Centex Engineering & Construction, Inc. Nevada corporation
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Centex Corporation owned 65.1% of Centex Construction Products, Inc. as of
December 31, 2002.
ANNEX A
[Form of Opinion of Executive Vice President, Chief Legal Officer
and Secretary of the Company]
Xxxxxxx X. Xxxxxx, 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 case
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(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.
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
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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 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.
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In the course of participating in the preparation of the
Registration Statement and the Prospectus, I have had conferences to discuss and
review the contents thereof with various officers of the Company and its
affiliates, with the Company's independent certified public accountants and with
your representatives. I have no reason to believe that as of the date of this
opinion and as of the effective date of the Registration Statement, the
Registration Statement (other than the financial statements and the other
financial information and related schedules, as to which I express no belief,
and except for those parts of the Registration Statement that constitute the
Form T-1), contains or contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of the date hereof, the
Prospectus (other than the financial statements and the other financial
information and related schedules, as to which I express no belief), contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
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ANNEX B
[Form of Opinion of Counsel for the Company]
Xxxxx Xxxxx 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 XXXXX system, the Prospectus Supplement
dated January __, 2003 was filed on January __, 2003 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.
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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. 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, 2002 audited
balance sheet included in the Registration Statement and the Prospectus
or (B) for the period from March 31, 2002 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.
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