-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, lYEeQkJj8l2OO3FPGrIbx6kWtC1ojL5CFLosRGtBiejBgw2oraKH37n1izCYvhdM lr19ggdvmGAbsXLDrDstkg== 0000950134-95-001669.txt : 19950724 0000950134-95-001669.hdr.sgml : 19950724 ACCESSION NUMBER: 0000950134-95-001669 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19950721 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTEX CORP CENTRAL INDEX KEY: 0000018532 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 750778259 STATE OF INCORPORATION: NV FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-61223 FILM NUMBER: 95555354 BUSINESS ADDRESS: STREET 1: 3333 LEE PARKWAY SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75219 BUSINESS PHONE: 2145596500 MAIL ADDRESS: STREET 1: PO BOX 19000 STREET 2: PO BOX 19000 CITY: DALLAS STATE: TX ZIP: 75219 FORMER COMPANY: FORMER CONFORMED NAME: CENTEX CONSTRUCTION CO INC DATE OF NAME CHANGE: 19681211 S-3 1 FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 1995. REGISTRATION NO. 33- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ CENTEX CORPORATION (Exact name of registrant as specified in its charter) NEVADA 75-0778259 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 3333 LEE PARKWAY RAYMOND G. SMERGE DALLAS, TEXAS 75219 VICE PRESIDENT, CHIEF LEGAL OFFICER (214) 559-6500 AND SECRETARY (Address, including zip code, CENTEX CORPORATION and telephone number, including 3333 LEE PARKWAY area code, of registrant's DALLAS, TEXAS 75219 principal executive offices) (214) 559-6500 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------ Copy To: DON J. MCDERMETT, JR. THOMPSON & KNIGHT, P.C. 1700 PACIFIC AVENUE DALLAS, TEXAS 75201 (214) 969-1700 ------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective. If the only securities being registered on this From are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [x] ------------ CALCULATION OF REGISTRATION FEE
=============================================================================================================== Proposed Proposed Maximum Maximum Amount Offering Aggregate Amount of Title of Each Class of to be Price Per Offering Registration Securities to be Registered Registered Unit(1) Price(1) Fee - --------------------------------------------------------------------------------------------------------------- Debt Securities, $100,000,000 100% $100,000,000 $34,483 various series . . . . . . . . . . . aggregate principal amount ===============================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee. ------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. =============================================================================== 2 [Form of Prospectus Supplement. A Prospectus Supplement in definitive form reflecting the terms of each series of Senior and/or Subordinated Debt Securities will accompany the definitive Prospectus in connection with each such series offered and sold pursuant to the Registration Statement.] PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 199 $ CENTEX CORPORATION [DEBT SECURITIES] [Summary of terms of the Debt Securities to be completed at time of offering.] [The [Debt Securities] will be issued in the form of one or more Global Securities (the "Global Securities") registered in the name of The Depository Trust Company (the "Depository") or its nominee. Interests in the Global Securities will be shown on, and transfers will be effected only through, records maintained by the Depository and its participants. Except as described herein, [Debt Securities] in definitive form will not be issued. See "Description of [Debt Securities]" in this Prospectus Supplement.] ------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------
Initial Public Underwriting Proceeds to Offering Price(1) Discount(2) Company(3) ----------------- --------------- -------------- Per [Debt Security] . . . . . . . . . . . . . . . . . . . % % % Total . . . . . . . . . . . . . . . . . . . . . . . . . . $ $ $
_______________ (1) Plus accrued interest, if any, from , 199 . (2) The Company has agreed to indemnify the Underwriters against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended. See "Underwriting" in this Prospectus Supplement. (3) Before deducting estimated expenses of $ payable by the Company. ------------ The [Debt Securities] are offered severally by the Underwriters, as specified herein, subject to receipt and acceptance by them and subject to their right to reject orders in whole or in part. It is expected that the [Debt Securities] will be [ready for delivery at the offices of , in New York, New York,] [made through the facilities of the Depository] on or about , 199 . [UNDERWRITERS] ------------ THE DATE OF THIS PROSPECTUS SUPPLEMENT IS , 199 . 3 IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE [DEBT SECURITIES] OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. USE OF PROCEEDS The net proceeds from the sale of the [Debt Securities] are estimated to be approximately $ (after deduction of underwriting discounts and expenses payable by the Company). Such proceeds initially will be used to repay short-term notes payable to banks and commercial paper borrowings with a weighted average interest rate of approximately %. CAPITALIZATION The following table sets forth the capitalization of the Company as of , 199 and as adjusted (unaudited) to give effect to the issuance of the [Debt Securities] offered hereby and the application of the proceeds as indicated under "Use of Proceeds".
, 1995 ------------------------------------------------------------ CENTEX CORPORATION CENTEX FINANCIAL AND SUBSIDIARIES CORPORATION SERVICES ------------------- ------------------- ------------------- AS AS AS ACTUAL ADJUSTED ACTUAL ADJUSTED ACTUAL ADJUSTED -------- ---------- -------- ---------- -------- -------- (DOLLARS IN THOUSANDS) Short-term debt(1)(6)(7) . . . . . . . . . . $ $ $ $ $ $ Long-term debt(2)(6) . . . . . . . . . . . . [Debt Securities], offered hereby . . . . Senior notes(3) . . . . . . . . . . . . . Subordinated debentures(4) . . . . . . . . Other indebtedness(8) . . . . . . . . . . Total debt . . . . . . . . . . . . . . Stockholders' Equity: Preferred stock, undesignated par value; authorized 5,000,000 shares; none issued Common stock, $.25 par value; authorized 50,000,000 shares; outstanding shares(5) Capital in excess of par value . . . . . . Retained earnings . . . . . . . . . . . . Total stockholders' equity . . . . . . . . Total debt and stockholders' equity . . $ $ $ $ $ $ ========= ======== ====== ======= ======== =======
_____________________________ (1) Short-term debt of $ million at , 19 included $ million in commercial paper and $ million payable to banks. The Company borrows on a short-term basis from banks under uncommitted lines which bear interest at prevailing money market rates. The weighted average interest rate on such short-term debt at , 19 was %. (2) [Description of the Company's long-term credit facilities with banks in effect at time of offering.] (3) In May 1991, the Company issued $100,000,000 principal amount of its 9.05% senior notes due May 1, 1996. Such notes, which were sold at par, are not redeemable prior to maturity. [Description of the priority of such indebtedness compared to the offered Debt Securities and an appropriate cross reference to the Prospectus.] S-2 4 (4) In March 1987, the Company issued $100,000,000 principal amount of its 8.75% subordinated debentures maturing March 1, 2007. Such debentures are not redeemable prior to maturity. The Company sold these debentures at a discount to par to yield 8.84% over their 20-year life. The discount is being amortized as additional interest expense based on the yield method. The unamortized discount at , 19 of $ was offset against the debenture balance. In June 1987, the Company issued $20,000,000 principal amount of its 8.80% subordinated debentures maturing June 30, 2007. Such debentures are not redeemable by the Company prior to June 30, 1997. Such debentures are redeemable at the request of a debentureholder at any time prior to maturity upon the occurrence of certain events related to the completion and continued operation by the Company of a gypsum wallboard plant. Such debentures were sold at a price of 100% of the principal amount thereof. In June 1995, the Company issued $100,000,000 principal amount of its 7-3/8% subordinated debentures maturing June 1, 2005. Such debentures are not redeemable by the Company prior to maturity. The Company sold these debentures at a discount to par to yield 7.43% over their 10-year life. The discount is being amortized as additional interest expense based on the yield method. The unamortized discount at , 19 of $ was offset against the debenture balance. [Description of the priority of such indebtedness compared to the offered Debt Securities and an appropriate cross reference to the Prospectus.] (5) At , 199 , the Company had shares of its common stock reserved for issuance under its stock option plans, of which were subject to outstanding options. (6) At , 199 , the aggregate amount of the Company's outstanding indebtedness that would rank [senior to] [pari passu with] the [Debt Securities] offered hereby was approximately $ million, including approximately $ million of indebtedness to the Company's subsidiaries. See "Description of Debt Securities" in the accompanying Prospectus. (7) In an effort to be more meaningful, the above table presents the capitalization of the Company on a fully- consolidated basis (the "Centex Corporation and Subsidiaries" column), including the consolidated debt of the Company's financial services operations, which include [CTX Mortgage Company ("CTX"), Centex's mortgage banking subsidiary], the capitalization related to the Company's business operations other than financial services operations (the "Centex Corporation" column) and the capitalization related to the Company's financial services operations (the "Financial Services" column). The Company also utilizes this presentation in connection with the presentation of its consolidated balance sheets. (8) Includes $ of convertible subordinated debt due in the year 2000. [RATINGS At the time of their original issuance, the [Debt Securities] will be rated by and by . A security rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time by the assigning rating organization.] [RECENT DEVELOPMENTS To be completed with additional information, if necessary.] DESCRIPTION OF [DEBT SECURITIES] The following description of the particular terms of the [Debt Securities] offered hereby supplements, and to the extent inconsistent therewith replaces, the description of the general terms and provisions of the Debt Securities set forth in the accompanying Prospectus. GENERAL [Terms to be completed at time of offering.] S-3 5 [GLOBAL SECURITIES The [Debt Securities] will be issued in whole or in part in the form of one or more Global Securities deposited with, or on behalf of, the Depository and registered in the name of a nominee of the Depository. Except under the limited circumstances described in the Prospectus under "Description of Debt Securities--Global Securities," owners of beneficial interests in Global Securities will not be entitled to physical delivery of [Debt Securities] in certificated form. Global Securities may not be transferred except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any nominee to a successor of the Depository or a nominee of such successor. A further description of the Depository's procedures with respect to Global Securities representing the [Debt Securities] is set forth in the Prospectus under "Description of Debt Securities -- Global Securities". The Depository has confirmed to the Company, the Underwriters and the Trustee that it intends to follow such procedures. The Depository has advised the Company and the Underwriters as follows: The Depository is a limited-purpose trust company organized under the laws of the State of New York, a member of the Federal Reserve System, a "clearing corporation' within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended. The Depository was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. The Depository's participants include securities brokers and dealers (including the Underwriters), banks, trust companies, clearing corporations and certain other organizations, some of which (and/or their representatives) own the Depository. Access to the Depository's book-entry system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. Persons who are not participants may own beneficial interests in Global Securities held by the Depository only through participants.] UNDERWRITING Subject to the terms and conditions set forth in an underwriting agreement (the "Underwriting Agreement") among the Company and the underwriters named below (the "Underwriters"), the Company has agreed to sell to each of the Underwriters, and each of the Underwriters, for whom [Name(s) of Managing Underwriter(s)] are acting as representatives, has severally agreed to purchase from the Company, the principal amount of the [Debt Securities] set forth opposite its name below. The Underwriting Agreement provides that the obligations of the Underwriters are subject to certain conditions precedent and that the Underwriters will be obligated to purchase all of the [Debt Securities] if any are purchased.
PRINCIPAL AMOUNT OF UNDERWRITER [DEBT SECURITIES] [Underwriters] . . . . . . . . . . . . . . . . . . . . . . $ -------------- Total . . . . . . . . . . . . . . . . . . . . . . $ ==============
The Underwriters propose to offer the [Debt Securities] in part directly to the public at the initial public offering price set forth on the cover page of this Prospectus Supplement and in part to certain securities dealers at such price less a concession not to exceed % of the principal amount of the [Debt Securities]. The Underwriters may allow, and such dealers may reallow, a concession not to exceed % S-4 6 of the principal amount of the [Debt Securities] to certain brokers and dealers. After the [Debt Securities] are released for sale to the public, the offering price and other selling terms may from time to time be varied by the representatives. The [Debt Securities] are a new issue of securities with no established trading market. No assurance can be given as to the existence or the liquidity of any trading market for the [Debt Securities]. The Company has agreed to indemnify the several Underwriters with respect to certain civil liabilities, including liabilities under the Securities Act of 1933, as amended. S-5 7 ******************************************************************************** Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any State in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such State. ******************************************************************************** SUBJECT TO COMPLETION, DATED JULY 21, 1995 PROSPECTUS CENTEX CORPORATION DEBT SECURITIES ______________________________ The Company may from time to time issue and offer up to $100,000,000 (or its equivalent in other currencies) aggregate principal amount of unsecured debt securities (the "Debt Securities") consisting of bonds, debentures, notes and/or other unsecured evidences of indebtedness in one or more series. The Debt Securities may be either senior (the "Senior Debt Securities") or subordinated (the "Subordinated Debt Securities") in priority of payment. The Debt Securities may be offered as separate series in amounts, at prices and on terms to be determined at the time of sale. An accompanying Prospectus Supplement will set forth, with regard to the Debt Securities in respect of which this Prospectus is being delivered, the terms of the Debt Securities, including, where applicable, the specific designation, priority, aggregate principal amount, denominations, maturity, rate (which may be fixed or variable) and time of payment of any interest, any terms for redemption at the option of the Company or the holder, any terms for sinking fund payments, any listing on a securities exchange and the initial public offering price and any other terms in connection with the offering and sale of such Debt Securities. The Senior Debt Securities, when issued, will, except under certain circumstances, rank on a parity with all other unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt Securities, when issued, will be unsecured and subordinated to all present and future Senior Indebtedness (as defined herein) of the Company. The Company may sell Debt Securities to or through underwriters, and also may sell Debt Securities directly to other purchasers or through agents. An accompanying Prospectus Supplement will set forth the names of any underwriters or agents involved in the sale of the Debt Securities in respect of which this Prospectus is being delivered, the principal amounts, if any, to be purchased by underwriters and the compensation, if any, of such underwriters or agents. Because the Company conducts its business through subsidiaries, the Company's rights and the rights of its creditors, including holders of the Debt Securities, to participate in the assets of any subsidiary upon the latter's liquidation or recapitalization will be subject to the prior claims of the subsidiary's creditors, except to the extent that the Company may itself be a creditor with recognized claims against the subsidiary. Moreover, the ability of the Company to pay principal of and interest on the Debt Securities is, to a large extent, dependent upon the payment to it of dividends, interest or other amounts by subsidiaries of the Company. As of March 31, 1995, subsidiaries of the Company had approximately $273 million principal amount of debt secured by subsidiary assets outstanding to third party creditors, including approximately $272 million related to the Company's mortgage banking subsidiary. Neither of the indentures under which the Debt Securities will be issued contains any limitation on the ability of the Company to incur additional debt or on the ability of the Company's subsidiaries to incur additional debt to the Company or to unaffiliated third parties. See "Description of Debt Securities" in this Prospectus. ______________________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. This Prospectus may not be used to consummate sales of Debt Securities unless accompanied by a Prospectus Supplement. ______________________________ The date of this Prospectus is , 199 . 8 AVAILABLE INFORMATION Centex Corporation, a Nevada corporation (which, together with its subsidiaries consolidated for financial reporting purposes, is herein and in the Prospectus Supplement referred to as "Centex" or the "Company," unless otherwise specified herein or the context requires otherwise), is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information may be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and at 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of such materials can be obtained by mail at prescribed rates from the Public Reference Branch of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, such material may also be inspected and copied at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. The Company has filed with the Commission a Registration Statement on Form S-3 (herein, together with all amendments and exhibits, referred to as the "Registration Statement") under the Securities Act of 1933, as amended, with respect to the Debt Securities offered hereby. This Prospectus and the Prospectus Supplement, which form a part of the Registration Statement, do not contain all the information set forth in the Registration Statement, certain parts of which have been omitted in accordance with the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission (File No. 1-6776) pursuant to the Exchange Act are incorporated herein by reference: 1. The Joint Annual Report on Form 10-K of the Company and 3333 Holding Corporation and Centex Development Company, L.P. for the fiscal year ended March 31, 1995, as amended by Amendment No. 1 thereto; and 2. All other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Debt Securities offered hereby. Any statement contained herein or in a document or information incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus and the Prospectus Supplement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus or the Prospectus Supplement. The Company will provide without charge to each person to whom this Prospectus and the Prospectus Supplement have been delivered, upon the request of any such person, a copy of any and all of the documents which have been or may be incorporated by reference in this Prospectus and the Prospectus Supplement, other than exhibits to such information (unless such exhibits are specifically incorporated by reference into such documents). Requests should be directed to Raymond G. Smerge, Vice President, Chief Legal Officer and Secretary, Centex Corporation, 3333 Lee Parkway, Dallas, Texas 75219, telephone (214) 559-6500. 2 9 THE COMPANY Centex Corporation, through its subsidiaries, currently operates in three business segments: Home Building, Financial Services and Contracting and Construction Services. Home building operations primarily involve the construction and sale of residential housing, including the purchase and development of land. The Company also offers mortgage and other financial services to its home buyers and others. Contracting and construction services activities involve the construction of multi-purpose buildings and facilities for both private and government interests, including hospitals, hotels, museums, libraries, airport terminals, condominiums and educational facilities. In April 1994, the Company's construction products subsidiary, Centex Construction Products, Inc. ("CXP"), completed an initial public offering of 51% of its common stock; Centex Corporation still retains 49% of CXP's common stock. CXP's operations include the production, distribution and sale of cement, aggregates, readymix concrete and gypsum wallboard. The Company also was engaged in the savings and loan business until this operation was sold in December 1994. See "Business". The address of the Company's principal executive office is 3333 Lee Parkway, Dallas, Texas 75219, and its telephone number is (214) 559-6500. USE OF PROCEEDS Except as otherwise provided in the related Prospectus Supplement, the net proceeds from the sale of the Debt Securities will be added to the general funds of the Company, and substantially all of the proceeds initially will be used to repay short-term notes payable to banks and commercial paper borrowings. RATIO OF EARNINGS TO FIXED CHARGES(1)
FOR THE FISCAL YEARS ENDED MARCH 31, --------------------------------------------------------- 1995 1994 1993 1992 1991 --------- --------- --------- --------- --------- Company (excluding mortgage banking and savings and loan operations)(2) . . . . . . . . . . . 4.57X 2.80X 2.60X 1.93X 2.52X Total enterprise(3) . . . . . . . . . . . . . . 3.23X 2.77X 2.27X 1.59X 1.55X
_________________ (1) For purposes of calculating this ratio, fixed charges consist of interest costs (interest expense plus capitalized interest), one-third of estimated rent expenses (as representative of the interest portion of rentals) and amortization of debt expense, and earnings consist of net earnings before income taxes, extraordinary items and fixed charges. (2) See footnote (1) to "Summary of Selected Financial Data" and "Business--Home Building" and "Business--Financial Services". (3) The ratio of earnings to fixed charges on a total enterprise basis, pursuant to the rules and regulations promulgated by the Commission, includes the earnings and fixed charges of the Company's mortgage banking subsidiaries and discontinued savings and loan operations, which are consolidated for financial reporting purposes in accordance with generally accepted accounting principles. See "Business--Home Building" and "Business--Financial Services". 3 10 SUMMARY OF SELECTED FINANCIAL DATA The following is a summary of certain selected financial data related to the Company for each of the five years in the period ended March 31, 1995, which is derived from the consolidated financial statements of the Company audited by Arthur Andersen LLP, independent public accountants. The March 31, 1995 and 1994 consolidated balance sheets and the related consolidated statements of earnings, stockholders' equity and cash flows for each of the three years in the period ended March 31, 1995 incorporated by reference in the Joint Annual Report on Form 10-K, as amended, of the Company and 3333 Holding Corporation and Centex Development Company, L.P. for such year are incorporated by reference herein. The following summary is qualified in its entirety by such financial statements and the notes thereto.
FOR THE FISCAL YEARS ENDED MARCH 31, --------------------------------------------------------------- 1995 1994 1993 1992 1991 ----------- --------- -------- --------- ---------- (DOLLARS IN THOUSANDS) Revenues . . . . . . . . . . . . . . $3,277,504 $3,039,709 $2,363,325 $2,028,646 $2,089,110 Net earnings (1) . . . . . . . . . . $ 92,248 $ 85,162 $ 61,038 $ 34,557 $ 43,605 Total assets . . . . . . . . . . . . $2,049,698 $2,580,356 $2,272,093 $2,347,452 $2,037,486 Total long-term debt, including debentures (2) . . . . . . $ 222,530 $ 222,832 $ 223,988 $ 232,294 $ 137,235 Total debt (2) . . . . . . . . . . . $ 427,381 $ 429,470 $ 368,988 $ 298,508 $ 267,946 Deferred income taxes (2) . . . . . . $ 27,795 $ 35,088 $ 55,722 $ 56,627 $ 80,205 Stockholders' equity . . . . . . . . $ 668,227 $ 668,659 $ 578,415 $ 518,494 $ 483,677 Total debt as a percent of total capitalization (total debt, deferred income taxes, negative goodwill and stockholders' equity) (2) 38.0% 37.1% 35.8% 33.0% 30.9%
_________________ (1) Net earnings for the fiscal year ended March 31, 1995 include a nonrecurring gain of $37.5 million realized in connection with an initial public offering of 51% of CXP's common stock. See "Business--Construction Products" herein. (2) Excludes debt and deferred income taxes of the mortgage banking subsidiaries and discontinued savings and loan operations. Reference is made to Note 7 under "Capitalization" in the accompanying Prospectus Supplement and to the consolidated balance sheet and Note (A) to the Company's Consolidated Financial Statements incorporated by reference in the Joint Annual Report on Form 10-K, as amended, of Centex and 3333 Holding Corporation and Centex Development Company, L.P., which Annual Report on Form 10-K, as amended, is incorporated herein by reference. BUSINESS GENERAL Since its founding in 1950 as a Dallas, Texas-based residential and commercial construction company, Centex has evolved into a multi-industry company. Centex currently operates in three business segments: Home Building, Financial Services and Contracting and Construction Services. Centex also has a 49% interest in Centex Construction Products, Inc., a NYSE-listed company in the construction products business. 4 11 Centex expanded into the real estate development business in fiscal year 1988 by establishing Centex Development Company, L.P., an independent, publicly held master limited partnership ("CDC"). Reference is made to Part B of the Joint Annual Report on Form 10-K, as amended, of Centex Corporation and 3333 Holding Corporation and Centex Development Company, L.P., incorporated herein by reference, for a discussion of the business of CDC. Unless the context requires otherwise, references herein to "Centex" or the "Company" shall mean Centex Corporation and its subsidiaries. HOME BUILDING The Company's Home Building operations primarily involve the construction and sale of residential housing, including the purchase and development of land. The Company's Home Building operations have ranked, by the number of units produced in a calendar year, as the largest U.S. builder of single-family homes since 1989. Centex is also the only company to rank among Professional Builder's top 10 home builders for each of the past 26 years. Centex sells to both first time and move-up buyers. Approximately 95% of the houses Centex sells are single-family detached homes and the remainder are townhomes and low-rise condominiums. Centex conducts its Home Building operations through its wholly- owned subsidiary, Centex Real Estate Corporation, which does business under the name Centex Homes ("Centex Homes"). Markets Centex follows a strategy of reducing exposure to local market volatility by spreading operations across geographically and economically diverse markets. Centex presently builds in 44 market areas in 20 states and the United Kingdom. The markets are listed below by geographic areas. WEST California - Seattle, Washington East Bay Area Reno, Nevada Sacramento Portland, Oregon Bakersfield Riverside/Orange County/San Bernadino Northern Los Angeles/Ventura Central Valley (Fresno & Visalia) San Diego MIDWEST Chicago, Illinois Indianapolis, Indiana Minneapolis, Minnesota Columbus, Ohio Denver, Colorado EAST Nashville, Tennessee Atlanta, Georgia Virginia - North Carolina - Northern Virginia Charlotte Hampton Roads Raleigh/Durham Maryland South Carolina - East Windsor, New Jersey Charleston Columbia Greenville 5 12 SOUTHEAST Florida - Ft. Lauderdale Palm Beach Jacksonville Bradenton/Sarasota Naples/Ft. Myers Tampa Orlando Titusville SOUTHWEST Texas - Phoenix, Arizona Austin Albuquerque, New Mexico Dallas/Fort Worth (3 markets) Houston (2 markets) Killeen San Antonio In fiscal 1995, Centex closed 12,964 homes, including first time, move-up and, in some markets, custom homes, ranging in price from approximately $65,000 to about $650,000 with the average sale price being approximately $159,200. In the Dallas and San Antonio locations, Centex has custom home divisions which offer higher-end homes. Summarized below by geographic area are Centex's home closings for the fiscal years ended March 31, 1995 and 1994, sales (orders) backlog at March 31, 1995 and 1994, and sales (orders) for the fiscal years ended March 31, 1995 and 1994.
FOR THE FISCAL YEARS ENDED MARCH 31, ----------------------- 1995 1994 --------- --------- CLOSINGS (IN UNITS): West . . . . . . . . . . . . . . . . . . . . . . . . . . 2,454 1,973 Midwest . . . . . . . . . . . . . . . . . . . . . . . . 1,283 1,114 East . . . . . . . . . . . . . . . . . . . . . . . . . . 2,921 2,599 Southeast . . . . . . . . . . . . . . . . . . . . . . . 2,632 2,895 Southwest . . . . . . . . . . . . . . . . . . . . . . . 3,674 3,982 --------- --------- 12,964 12,563 ========= ========= AVERAGE SALES PRICE (000'S) . . . . . . . . . . . . . . . $ 159 $ 147 ========= ========= SALES (ORDERS) BACKLOG, AT END OF PERIOD (IN UNITS): West . . . . . . . . . . . . . . . . . . . . . . . . . . 603 756 Midwest . . . . . . . . . . . . . . . . . . . . . . . . 442 622 East . . . . . . . . . . . . . . . . . . . . . . . . . . 918 1,279 Southeast . . . . . . . . . . . . . . . . . . . . . . . 892 1,387 Southwest . . . . . . . . . . . . . . . . . . . . . . . 1,132 1,751 --------- --------- 3,987 5,795 ========= =========
6 13
FOR THE FISCAL YEARS ENDED MARCH 31, ----------------------- 1995 1994 --------- --------- SALES (ORDERS) (IN UNITS): West . . . . . . . . . . . . . . . . . . . . . . . . . . 2,301 2,066 Midwest . . . . . . . . . . . . . . . . . . . . . . . . 1,103 1,275 East . . . . . . . . . . . . . . . . . . . . . . . . . . 2,560 2,686 Southeast . . . . . . . . . . . . . . . . . . . . . . . 2,137 3,022 Southwest . . . . . . . . . . . . . . . . . . . . . . . 3,055 4,158 --------- --------- 11,156 13,207 ========= =========
Inventory Turnover The Company's policy has been to acquire land with the intent to complete the sale of homes within 24-36 months from the date of acquisition. Generally, this involves land that is properly zoned and is either ready for development or, to a much lesser degree, already developed. The Company has acquired a substantial amount of its finished and partially improved lots and land under option agreements which are exercised over specified time periods, or in certain cases, as the lots are needed. The purchase of finished lots generally allows the Company to shorten the lead time to commence construction and reduces the risks of unforeseen improvement costs and volatile market conditions. Competition and Other Factors The home building industry is essentially a "local" business and is highly competitive. Centex competes in each of its market areas with numerous other home builders. The Company's Home Building operations account for less than 2% of the total housing starts in the United States. The main competitive factors affecting Centex's Home Building operations are location, price, cost of providing mortgage financing for customers, construction costs, design and quality of homes, marketing expertise, availability of land and a builder's reputation. Management believes the Company competes effectively by maintaining geographic diversity, being responsive to the specific demands of each market and managing the operations at a local level. The home building industry is cyclical and is particularly affected by changes in local economic conditions and in long-term and short-term interest rates and, to a lesser extent, changes in property taxes and energy costs, federal income tax laws, federal mortgage financing programs and various demographic factors. The political and economic environment affects both the demand for housing constructed by the Company and the Company's cost of financing. Unexpected climatic conditions, such as unusually heavy or prolonged rain or snow, may affect operations in certain areas. The housing industry is subject to extensive and complex regulations. The Company and its subcontractors must comply with various federal, state and local laws and regulations including zoning, building, environmental, advertising and consumer credit rules and regulations. The Company is also subject to other rules and regulations in connection with its manufacturing and sales activities, including requirements as to building materials to be used and building designs. The Company's homes are inspected by local authorities. 7 14 The Company's Home Building operations are subject to numerous federal, state and local regulatory schemes concerning, among other things, worker health and safety, zoning, building design, construction materials and the extensive and changing federal, state and local laws, regulations and ordinances governing the protection of the environment ("Environmental Laws"), including the protection of endangered species. All of the foregoing regulatory requirements are applicable to all home building companies, and to date, compliance with the foregoing requirements has not had a material impact on the Company. The Company believes that it is in material compliance with all such requirements. Centex has numerous suppliers of all the materials and services and sources of lots and land used in home building and believes that it can deal effectively with any problems it may experience relating to the supply of materials and services as well as lots and land. Vista Acquisition In December 1994, Centex International, Inc., a wholly-owned subsidiary of Centex Corporation, entered into an agreement with Dallas-based Vista Properties, Inc. ("Vista") under which Centex International, Inc. would acquire equity interests in Vista and in its affiliated partnership, Vista Partners, as part of a proposed prepackaged bankruptcy restructuring by Vista that would result in payments to Vista's securityholders of approximately $89.9 million. Under this agreement, Centex would acquire majority ownership of a company with a portfolio of properties comprising approximately 3,800 acres in seven states. The land is zoned, planned or developed for: single- and multi-family residential, office and industrial, and retail and commercial. The acquisition could provide Centex with future residential sites in several of its existing markets as well as opportunities in retail, industrial and office segments. In June 1995, Lennar Corporation ("Lennar") made an overbid offer to Vista to acquire the equity interests in Vista and in its affiliated partnership, Vista Partners, that would result in payment to Vista's securityholders of approximately $92.5 million. Centex International, Inc. responded to Lennar's bid by negotiating and executing, on June 30, 1995, an amended and restated securities purchase agreement with Vista which provides for distribution of $94.5 million to Vista's securityholders, which amount increases to $95.5 million if Vista's bankruptcy petition is filed with the bankruptcy court by August 18, 1995. This offer would require an investment of approximately $75 million by Centex International, Inc. On July 13, 1995, Vista commenced the solicitation of consents of its securityholders to the prepackaged bankruptcy plan of reorganization. The transaction is now expected to be completed during the fall of 1995, subject to the satisfaction of the conditions stated in the agreement, including approval from Vista's securityholders and bankruptcy court approval. Under the agreement, Centex has the right, at its option, to top future third-party overbids, if any. United Kingdom Joint Venture In February 1995, Centex announced its wholly-owned subsidiary, Centex Homes (UK) Limited, had entered into a joint venture agreement with a London-area home builder, The Charles Church Group Limited ("Charles Church"), to build homes in the United Kingdom. The venture is the first entry into the international home building marketplace for Centex Homes. Centex Homes (UK) Limited and Charles Church each are contributing up to $3 million in cash to the venture, with its remaining funding (up to $9 million) financed by a United Kingdom bank, which financing is guaranteed by Centex. In addition, Centex Homes has designated certain personnel to work with this United Kingdom venture. 8 15 The new operation, Charles Church Homes Limited, acquired its first parcel of undeveloped land in Berkshire County, west of London. Located in Sunningdale, the parcel consists of 2.1 acres. Homes in the 3,500-4,000 square foot range, which will sell for approximately $750,000 each, should be ready for occupancy late in calendar 1995. A second parcel of land has been acquired nearby, in Wokingham, Berkshire County. The homes to be built on this site will be 1,700 to 2,000 square feet in size, will sell for approximately $350,000 each and should be completed early in calendar 1996. Several other potential sites in the London area are currently being evaluated. FINANCIAL SERVICES Financial Services consist of mortgage banking and, until December 1994, savings and loan operations. The Company's mortgage banking activities are conducted through Centex's wholly-owned subsidiary, CTX Mortgage Company ("CTX"), which offers mortgage origination and other related services on homes sold by Centex Homes and by third parties. The savings and loan activities, which were conducted through Texas Trust Savings Bank, FSB, were sold in December 1994. CTX Mortgage Company CTX was created in 1973 to provide mortgage financing for homes built by Centex Homes, Centex's home building operation. The establishment by CTX of mortgage offices in substantially all of Centex Homes' housing markets has enabled it to consistently provide mortgage financing for an average of 73% of the homes built by Centex Homes ("Builder Loans") over the past five years. In 1985, CTX expanded its operations to include third-party loans ("Spot Loans") that are not associated with the sale of homes built by Centex. At March 31, 1995, CTX had 110 offices located in 23 states. The offices vary in size depending on volume in each locality. During the 1995 fiscal year, due to the increase in mortgage rates and the related decline in refinancings, CTX downsized its operations. The division's operating locations and personnel were reduced by approximately 40%. CTX is updating and expanding its mortgage banking systems, including reautomating its accounting and loan delivery functions. This process will continue during fiscal 1996. The unit breakdown of Builder and Spot Loans for the fiscal years ended March 31, 1995 and 1994 are set forth in the following table:
FOR THE FISCAL YEARS ENDED MARCH 31, ----------------------- 1995 1994 --------- --------- Loan Types: Builder . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,504 9,289 Spot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,574 49,254 --------- --------- 37,078 58,543 ========= ========= Origination Volume (in billions) . . . . . . . . . . . . . . . $ 4.2 $ 6.4 Percent of Centex Closings Financed . . . . . . . . . . . . . . 66% 74%
9 16 CTX provides mortgage origination and other mortgage related services for Federal Housing Administration ("FHA"), Veterans Administration ("VA") and conventional loans on homes built and sold by the Company or by others. The Company's mortgage loans are first-lien mortgages secured by 1-4 family residences. A majority of the conventional loans are conforming loans which qualify for inclusion in mortgage loan pools that underlie mortgage backed securities sponsored by the Federal National Mortgage Association ("FNMA") or the Federal Home Loan Mortgage Corporation ("FHLMC"). The remainder of the conventional loans are pre-approved and individually underwritten by private investors who purchase such loans on a whole-loan basis for their investment portfolios. The principal sources of income from CTX's mortgage banking business are: loan origination fees; revenues from sale of servicing rights; positive carry (discussed below); and marketing gains and losses. Generally, CTX sells its right to service the mortgage loans to various loan servicing companies and therefore retains no mortgage servicing rights. Accordingly, CTX avoids the risk of early payoffs and foreclosures. CTX enters into various financial agreements, in the normal course of business, in order to manage the exposure to changing interest rates as a result of having issued loan commitments to its customers at a specified price and period and committing to sell mortgage loans to various investors. By immediately selling the mortgage loans for future delivery, substantially all interest rate risk is removed by the time of closing. CTX borrows money at short-term rates to fund its mortgage loans. During the customary 30- to 60-day period between closing of a mortgage loan and delivery of such loan to the purchaser, CTX earns the interest accrued on the mortgage loan, which is normally a higher interest rate than the rate paid on the short-term loans used to fund the mortgage loan during this 30- to 60-day holding period. This positive spread between the long-term interest rate earned and the short-term interest rate paid is referred to as "positive carry," and generally represents a major source of income. Competition and Other Factors The mortgage banking industry in the United States is highly competitive. CTX competes with other mortgage banking companies as well as financial institutions to supply mortgage financing at attractive rates to purchasers of Centex homes as well as to the general public. Mortgage banking results in fiscal 1995 were negatively impacted by an increasingly competitive environment. Rapidly rising interest rates commencing in February 1994 virtually stopped refinancing activity and caused consumers to shift from more profitable fixed-rate mortgages to lower-margin adjustable rate products. CTX is subject to the rules and regulations of, and examinations by, FNMA, FHLMC, the Department of Veterans' Affairs ("VA"), the Federal Housing Administration ("FHA"), the Government National Mortgage Association ("GNMA") and state regulatory authorities with respect to originating, processing, underwriting, making, selling, securitizing and servicing residential mortgage loans. In addition, there are other federal and state statutes and regulations affecting such activities. These rules and regulations, among other things, impose licensing obligations on CTX, establish eligibility criteria for mortgage loans, provide for inspection and appraisals of properties, regulate payment features and, in some cases, fix maximum interest rates, fees and loan amounts. CTX is required to maintain specified net worth levels by, and submit annual audited financial statements to, FHA, VA, FNMA, FHLMC and GNMA and certain state regulators. CTX's affairs are also subject to examination by the Federal Housing Commissioner at all times to assure compliance with FHA regulations, policies and procedures. Among other federal and state consumer credit laws, mortgage origination and servicing activities are subject to the Equal Credit Opportunity Act, the Federal Truth-In-Lending Act, the Real Estate Settlement 10 17 Procedures Act ("RESPA") and the regulations promulgated under such statutes, which prohibit discrimination and unlawful kickbacks and referral fees and require the disclosure of certain information to borrowers concerning credit and settlement costs. Many of these regulatory requirements are designed to protect the interest of consumers, while others protect the owners or insurers of mortgage loans. Failure to comply with these requirements can lead to loss of approved status, demands for indemnification or loan repurchases from investors, class action lawsuits by borrowers, administrative enforcement actions and, in some cases, rescission or voiding of the mortgage loan by the mortgagor. Other financial-related services provided by CTX affiliates include acting as an agent for the issuance of homeowners' insurance policies, title insurance policies and escrow services. CTX Insurance Agency provides hazard insurance to home buyers in Texas and Florida through third-party insurance companies. During fiscal 1994, CTX opened its first commercial loan operation. In fiscal 1995, CTX entered into a joint venture agreement with another home builder to provide mortgage origination for homes built by this home builder. In addition, during fiscal 1995, an affiliate of CTX entered the second lien market whereby this CTX affiliate will originate second mortgages for home improvements and home equity lines of credit. The affiliate utilizes CTX's branch network and telemarketing to solicit potential customers. Savings and Loan In December 1988, Centex purchased certain assets and assumed certain liabilities of four Texas savings and loan associations under the Federal Savings and Loan Insurance Corporation's assisted transactions process commonly known as the "Southwest Plan". The acquisition was made by Texas Trust Savings Bank, FSB ("Texas Trust"), a federal stock savings bank and an indirect wholly-owned subsidiary of Centex. The acquisition was made pursuant to acquisition agreements and an assistance agreement (the "Assistance Agreement") with the Federal Savings and Loan Insurance Corporation (the "FSLIC"). During December 1994, Texas Trust negotiated an early termination of the Assistance Agreement with the Federal Deposit Insurance Corporation (as successor to the FSLIC). On December 30, 1994 Texas Trust's eight branch facilities were sold to a financial institution and all deposit liabilities were assumed by the purchaser. On the same day, immediately following the branch sale, Texas Trust was dissolved, thereby completing Centex's exit from the savings and loan industry. CONTRACTING AND CONSTRUCTION SERVICES Centex's contracting and construction services work is performed nationwide. As a group, Centex's Contracting and Construction Services subsidiaries rank as one of the largest building contractors in the country as well as one of the largest U.S.-owned construction groups. The Construction Group is made up of seven firms with various geographic locations and project niches. The overall group is heavily weighted towards health care facility construction which represents nearly 40% of its mix. New contracts for fiscal 1995 totaled $1.15 billion versus $1.03 billion for fiscal 1994. The backlog of uncompleted contracts at March 31, 1995 was $1.33 billion, compared to $1.24 billion at March 31, 1994. The group's principal subsidiaries are as follows: 11 18 CENTEX BATESON CONSTRUCTION COMPANY, INC. - This Dallas-based contractor (acquired in 1966) has become one of the nation's larger general contractors specializing in government and competitively-bid jobs. Its projects are nationwide. CENTEX-SIMPSON CONSTRUCTION COMPANY - This contractor (organized in 1966) is based in the Washington D. C. area and is engaged primarily in competitively-bid work for the public sector. CENTEX-ROONEY CONSTRUCTION COMPANY, INC. - This Ft. Lauderdale-based subsidiary (acquired in 1978) is one of the largest general contractors in the state of Florida. It operates primarily in Florida and handles predominantly negotiated work for private owners. CENTEX GREAT SOUTHWEST CORPORATION - This subsidiary (acquired in 1978) builds principally in the Tampa and Orlando areas and is a leading builder of airport terminals. CENTEX GOLDEN CONSTRUCTION COMPANY - This company (acquired in fiscal 1982) operates in the San Diego, Los Angeles and Northern California markets, handling both negotiated and competitively-bid work. CENTEX-RODGERS CONSTRUCTION COMPANY - This company (organized in 1987) is headquartered in Nashville, Tennessee, and is active nationally in the private medical construction services market. CENTEX FORCUM LANNOM, INC. - This industrial contracting company (acquired in 1990) is located in Dyersburg, Tennessee and operates in Tennessee and surrounding states. As a general contractor or construction manager, Centex provides the supervisory personnel for the construction of the building or facility. In addition, Centex may perform varying amounts of the actual construction work on a project, but will generally hire subcontractors to perform the majority of the work. As a result, the Company's Contracting and Construction Services operation requires a relatively small asset base. Construction contracts are primarily entered into under two formats: competitively-bid and negotiated jobs. In a competitively-bid format, Centex will bid a fixed amount for which it will agree to construct the project based on an evaluation of detailed plans and specifications. In a negotiated job, the contractor bids on a fixed fee over the cost of the project and, in many instances, agrees that the final cost will not exceed a designated amount. Such contracts may include a provision whereby the owner will pay a part of any savings from the guaranteed amount to the contractor. The Company's highest margins in contracting operations have usually been on competitively-bid jobs. Currently, the margins on competitively-bid and negotiated jobs are about equal. On average, about half of Centex's projects are competitively-bid, public jobs and the other half are negotiated contracts with private owners. The Company's public work for federal, state and local governments includes hospitals, jails, airports, parking garages, office buildings, military facilities, post offices and convention and performing arts centers. Most of Centex's private owner contracts are for hotels, medical facilities and office buildings, plus some shopping centers and condominiums. Competition and Other Factors The construction industry has become increasingly competitive, and Centex competes with numerous other companies. With respect to competitively-bid projects, Centex generally competes for projects 12 19 throughout the United States and with local, regional and national contractors, depending upon the nature of the project. For negotiated projects, Centex's subsidiaries compete primarily in the general geographical area where they are located and with other local, regional and national contractors. Centex solicits new projects by attending project bid meetings and meeting with builders and owners and through existing customers. Centex competes successfully on the basis of its reputation and financial strength. The Company's Contracting and Construction Services operations are affected by federal, state and local laws and regulations relating to worker health and workplace safety as well as Environmental Laws. With respect to health and safety matters, the Company believes that appropriate precautions are taken to protect employees and others from workplace hazards. Current Environmental Laws may require the Company's operating subsidiaries to work in concert with project owners to acquire the necessary permits or other authorizations for certain activities, including the construction of projects located in or near wetland areas. The Company's Contracting and Construction Services operations are also affected by Environmental Laws regulating the use and disposal of hazardous materials encountered during demolition operations. The Company believes that the Contracting and Construction Services group's current procedures and practices are consistent with industry standards and that compliance by the Construction Group with the health and safety laws and Environmental Laws does not constitute a material burden or expense for the Company. The Company's Contracting and Construction Services operations obtain materials and services from numerous sources. The Company believes that its construction companies can deal effectively with any problems they may experience in the supply of materials and services. CONSTRUCTION PRODUCTS Centex, through its 49% ownership of Centex Construction Products, Inc. ("CXP"), is a producer of a variety of basic construction products used in residential, industrial, commercial and infrastructure applications. CXP produces and sells cement, aggregates, readymix concrete and gypsum wallboard. CXP's operations are strategically located in various regions of the United States, many of which offer attractive prospects for long-term growth. In April 1994, the Company's formerly wholly-owned construction products subsidiary, CXP, completed the sale of 11,730,000 shares, or 51%, of its common stock through an initial public offering. Including dividend and other payments, Centex received $186.5 million from the transaction and used the funds to reduce its short-term debt. Centex retains ownership of 49% of CXP's stock. The Company believes that, as a separate public entity, CXP will be better positioned to expand its existing operations, take advantage of acquisition opportunities and otherwise implement its business strategy based on considerations directly relevant to a construction products enterprise. LEGAL PROCEEDINGS Management believes that no litigation in which the Company or any subsidiary is involved, if determined adversely to Centex or any subsidiary, would have a material adverse effect on the consolidated financial condition or results of operations of the Company. 13 20 DESCRIPTION OF DEBT SECURITIES GENERAL The Debt Securities offered hereby may be either senior (the "Senior Debt Securities") or subordinated (the "Subordinated Debt Securities") in priority of payment relative to the Company's other indebtedness. Senior Debt Securities may be issued from time to time in one or more series under an indenture (the "Senior Indenture"), as supplemented from time to time by an indenture supplement with respect to each series (each, a "Senior Indenture Supplement"), to be entered into between the Company and Texas Commerce Bank National Association, as trustee. Subordinated Debt Securities may be issued from time to time in one or more series under an indenture dated as of March 12, 1987 (the "Subordinated Indenture"), as supplemented from time to time by an indenture supplement with respect to each series (each, a "Subordinated Indenture Supplement"), between the Company and Texas Commerce Bank National Association, as trustee. The Senior Indenture and the Subordinated Indenture are sometimes hereinafter referred to collectively as the "Indentures," the Senior Indenture Supplements and the Subordinated Indenture Supplements are sometimes hereinafter referred to collectively as the "Indenture Supplements" and Texas Commerce Bank National Association, in its capacity as trustee under the Indentures, is hereinafter referred to as the "Trustee". See "Description of Debt Securities--The Trustee" herein for a description of certain consequences of Texas Commerce Bank National Association's serving as trustee under both Indentures. As used in this section of the Prospectus, unless the context otherwise requires, "debt securities" in lower case letters shall mean all debt securities issued or issuable, as the case may be, under the respective Indentures, and "Debt Securities" with initial capital letters shall mean the Debt Securities covered by this Prospectus and any accompanying Prospectus Supplement. The following summaries of certain provisions of the Indentures do not purport to be complete and are subject to, and qualified in their entirety by reference to, all provisions of the Indentures and the related Indenture Supplements, including the definitions of certain terms contained in the Indentures. In particular, the term "Company" as used in the Indentures and the related Indenture Supplements and in this section of the Prospectus means Centex Corporation without its subsidiaries. Copies of the Indentures and any Indenture Supplements have been or will be filed as exhibits with the Commission. Wherever particular sections or defined terms of the Indentures are referred to, such sections or defined terms are incorporated herein by reference. Capitalized terms not otherwise defined herein shall have the respective meanings given to them in the respective Indentures, as appropriate. Article and section numbers set forth below refer to provisions of both the Senior Indenture and the Subordinated Indenture unless otherwise noted. The Debt Securities will be unsecured obligations of the Company. The Debt Securities offered hereby will be limited to Debt Securities having an aggregate principal amount not to exceed $100,000,000 or the equivalent thereof in any currency, although the Indentures provide that additional debt securities may be issued thereunder up to the aggregate principal amount, which is not limited by the Indentures, authorized from time to time by the Company's Board of Directors. The Company may from time to time, without the consent of the holders of any of the Debt Securities offered hereby, authorize the issuance of future series of Debt Securities in addition to those authorized as of the date of this Prospectus or any related Prospectus Supplement. See "Capitalization" in the accompanying Prospectus Supplement and "Description of Debt Securities--Senior Debt Securities" and "Description of Debt Securities--Subordinated Debt Securities" herein for information relating to (i) $100,000,000 14 21 aggregate principal amount of 9.05% senior notes due May 1, 1996 previously issued by the Company under an indenture dated as of May 1, 1991, between the Company and Chemical Bank, as trustee (which senior notes rank pari passu in right of payment with any Senior Debt Securities offered hereby and senior in right of payment with any Subordinated Debt Securities offered hereby), and (ii) $220,000,000 aggregate principal amount of subordinated debt securities previously issued by the Company under the Subordinated Indenture (which subordinated debt securities rank junior in right of payment to any Senior Debt Securities offered hereby and pari passu in right of payment with any Subordinated Debt Securities offered hereby). Because the Company conducts its business through subsidiaries, the Company's rights and the rights of its creditors, including the holders of Debt Securities offered hereby, to participate in the assets of any subsidiary upon the latter's liquidation or recapitalization will be subject to the prior claims of the subsidiary's creditors, except to the extent that the Company may itself be a creditor with recognized claims against the subsidiary. Moreover, the ability of the Company to pay principal of and interest on the Debt Securities is, to a large extent, dependent upon the payment to it of dividends, interest or other amounts by subsidiaries of the Company. As of March 31, 1995, subsidiaries of the Company had approximately $273 million principal amount of debt secured by subsidiary assets outstanding to third party creditors, including approximately $272 million related to CTX's mortgage operations. The Indentures under which the Debt Securities are to be issued do not contain any limitation on the ability of the Company to incur additional debt or on the ability of the Company's subsidiaries to incur additional debt to the Company or to unaffiliated third parties. In addition, in connection with managing the working capital needs of the Company and its subsidiaries, from time to time the Company borrows funds and lends funds to its subsidiaries. The Company's indebtedness to its subsidiaries will rank pari passu in right of payment to Senior Debt Securities offered hereby and senior in right of payment to Subordinated Debt Securities offered hereby because of the inclusion of such indebtedness within the definition of the term "Senior Indebtedness" in the Subordinated Indenture. See "Capitalization" in the accompanying Prospectus Supplement and "Description of Debt Securities--Senior Debt Securities" and "Description of Debt Securities--Subordinated Debt Securities" herein. The particular terms of each series of Debt Securities, as well as any modification or addition to the general terms of the Debt Securities as herein described which may be applicable to a particular series of Debt Securities, are described in the Prospectus Supplement relating to such series of Debt Securities and will be set forth in a filing with the Commission. Accordingly, for a description of the terms of a particular series of Debt Securities, reference must be made to both the Prospectus Supplement relating to such series and the description of Debt Securities set forth in this Prospectus. In addition to the provisions of the Debt Securities hereinafter described, the Prospectus Supplement relating to each particular series of Debt Securities will set forth or describe: (1) the specific title or designation, aggregate principal amount and priority of such Debt Securities; (2) any limit on the aggregate principal amount of such Debt Securities; (3) the percentage of their principal amount at which such Debt Securities will be issued; (4) the date or dates on which such Debt Securities will mature; (5) the rate or rates per annum (which may be fixed or variable), or the method by which such rate or rates shall be determined, at which such Debt Securities will bear interest, if any; (6) the date or dates from which any such interest shall accrue, or the method by which such date or dates shall be determined, and the times at which any such interest will be payable; (7) the period or periods within which, the price or prices at which and the terms and conditions upon which such Debt Securities may be redeemed, in whole or in part, at the option of the Company or the holder, if the Company or the holder is to have such an option; (8) the obligation, if any, of the Company to redeem, repay or purchase such Debt Securities pursuant to any sinking fund or analogous provision and the period or periods within which, the price or prices at which and the terms and conditions upon which such Debt Securities shall be redeemed, repaid or 15 22 purchased, in whole or part, pursuant to such obligation; (9) the denominations in which such Debt Securities are authorized to be issued and the currencies in which such Debt Securities are issued or payable; (10) any additional restrictive covenants included for the benefit of holders of such Debt Securities, including a description of any so- called "event risk" covenants or other Indenture provisions affording holders of such Debt Securities specific protection in the event of a highly leveraged transaction involving the Company, and a description of the ability of the Company's Board of Directors to waive any such provisions (or, if there are no such covenants or provisions, a statement to that effect); (11) any additional Event of Default with respect to such Debt Securities; (12) whether such Debt Securities are to be issued in whole or in part in the form of one or more global securities ("Global Securities") and, if so, the identity of a depository for such Global Security or Securities; and (13) any other terms of such Debt Securities not inconsistent with the provisions of the applicable Indenture, or any provisions expressly amending the applicable Indenture with respect to the series of Debt Securities to which such Prospectus Supplement relates. Unless otherwise indicated in the Prospectus Supplement relating thereto, principal of and premium, if any, and interest on the Debt Securities will be payable, and the Debt Securities will be exchangeable and transfers thereof will be registrable, at the office or agency of the Company designated for that purpose in Dallas, Texas (initially the office of the Trustee), and any other office or agency of the Company designated for that purpose, provided that, at the option of the Company, payment of any interest may be made by check mailed to the address of the person entitled thereto as it appears in the Senior or Subordinated Debt Security Register. (Sections 2.04, 2.06 and 5.02.) The Company will from time to time execute and deliver Debt Securities to the Trustee for authentication and delivery, and the Trustee will authenticate and deliver such Debt Securities upon written order of the Company. No service charge will be made for any transfer or exchange of the Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. (Section 2.06.) SENIOR DEBT SECURITIES Generally speaking, Senior Debt Securities will rank equally with the Company's other general unsecured and unsubordinated indebtedness, including indebtedness from time to time outstanding to banks and other unaffiliated lenders. As of March 31, 1995, the total amount of the Company's indebtedness that would rank equally with Senior Debt Securities was approximately $534.8 million, including approximately $230.8 million of indebtedness to the Company's subsidiaries. Senior Debt Securities offered hereby also will rank pari passu in right of payment to the Company's $100,000,000 principal amount of 9.05% senior notes due May 1, 1996, previously issued under an indenture dated as of May 1, 1991, and an indenture supplement with respect thereto dated as of May 10, 1991, both between the Company and Chemical Bank, as trustee. All series of Senior Debt Securities of the Company issued under the Senior Indenture will rank pari passu in right of payment with each other and with such senior notes. See "Capitalization" in the accompanying Prospectus Supplement. The Senior Indenture provides that additional senior debt securities may be issued thereunder up to the aggregate principal amount, which is not limited by the Senior Indenture, authorized from time to time by the Company's Board of Directors. Any such additional senior debt securities would rank pari passu in right of payment with the Senior Debt Securities offered hereby. Further, the Senior Indenture does not prohibit the Company from entering into additional indentures and issuing thereunder additional debt securities that may rank pari passu in right of payment to the Senior Debt Securities offered hereby. 16 23 The Senior Debt Securities offered hereby will be senior in right of payment to the Company's $100,000,000 principal amount of 8.75% subordinated debentures due March 1, 2007, the Company's $20,000,000 principal amount of 8.80% subordinated debentures due June 30, 2007, and the Company's $100,000,000 principal amount of 7-3/8% subordinated debentures due June 1, 2005, all issued under the Subordinated Indenture. See "Capitalization" in the accompanying Prospectus Supplement and "Description of Debt Securities--General" herein. SUBORDINATED DEBT SECURITIES Except as hereinafter provided, the payment of the principal of and premium, if any, and interest on, and sinking fund requirements for, Subordinated Debt Securities (to the extent applicable) will be subordinated and junior in right of payment, to the extent and in the manner set forth in the Subordinated Indenture, to the prior payment in full of all Senior Indebtedness of the Company. Subject to modification, if any, as set forth in the related Prospectus Supplement, the term "Senior Indebtedness" is defined as (a) the principal of and premium, if any, and interest on (i) all indebtedness of the Company (other than the Subordinated Debt Securities, if any, offered hereby, other series of subordinated debt securities of the Company issued under the Subordinated Indenture, and the Company's convertible subordinated note referenced below), whether currently outstanding or hereafter created, for money borrowed by the Company or borrowed by others and guaranteed by the Company, including, without limitation, indebtedness to subsidiaries, (ii) Capitalized Lease Obligations of the Company, whenever incurred, (iii) all indebtedness arising in favor of any bonding company under any performance or payment bond or other similar bond issued by a company in connection with any construction contract to which the Company is or was a party, and (iv) indebtedness or obligations incurred, assumed or guaranteed by the Company in connection with the acquisition or improvement of any property or asset, tangible or intangible (including, without limitation, services or materials purchased or contracted for purchase in the ordinary course of the Company's business), or the acquisition of any business, unless, in each case referred to in clauses (i), (ii), (iii) and (iv) above, by the terms of the instrument creating or evidencing any such indebtedness it is expressly provided that such indebtedness is on a parity with, or otherwise not superior in right of payment to, the Subordinated Debt Securities; (b) any other indebtedness, liability or obligation, contingent or otherwise, of the Company and any guarantee, endorsement or other contingent obligation in respect of any indebtedness, liability or obligation of another created, assumed or incurred by the Company after the date of the Subordinated Indenture, which is, when created, assumed or incurred, specifically designated by the Company as Senior Indebtedness of the Company with respect to Subordinated Debt Securities; and (c) any refundings, renewals or extensions of any indebtedness or other obligation described in clause (a) or (b) above. (Subordinated Indenture Section 1.01.) The Company's $100,000,000 aggregate principal amount of 9.05% senior notes due May 1, 1996, previously issued under an indenture dated as of May 1, 1991, as supplemented by an indenture supplement with respect thereto dated as of May 10, 1991, both between the Company and Chemical Bank, as trustee, are included within the definition of Senior Indebtedness. As noted above under "Description of Debt Securities--General," any borrowings by the Company from its subsidiaries are also included within the definition of Senior Indebtedness. The Subordinated Indenture does not contain any limitation on the amount of Senior Indebtedness or any other kind of indebtedness that may be incurred by the Company after the date of this Prospectus. The aggregate amount of the Company's Senior Indebtedness at March 31, 1995 was approximately $534.8 million, $230.8 million of which represented indebtedness owed by the Company to its subsidiaries. See "Capitalization" in the accompanying Prospectus Supplement and "Description of Debt Securities--General" herein. 17 24 The Subordinated Indenture provides that the indebtedness evidenced by Subordinated Debt Securities ranks on a parity with the Company's $2,100,000 convertible subordinated note due in the year 2000, is entitled to like rights of subrogation and is otherwise not superior in right of payment to such note. (Subordinated Indenture Section 3.02.) All series of Subordinated Debt Securities as well as other series of subordinated debt securities of the Company issued under the Subordinated Indenture, including the Company's $100,000,000 8.75% subordinated debentures due March 1, 2007, its $20,000,000 8.80% subordinated debentures due June 30, 2007, and its $100,000,000 7-3/8% subordinated debentures due June 1, 2005, will rank equally with each other in right of payment. Except as hereinafter provided, the Subordinated Indenture prohibits any payment by the Company of principal of or premium, if any, or interest on, or sinking fund requirements for, the Subordinated Debt Securities during the continuance of any default in respect of certain Senior Indebtedness of the Company or any default under any agreement pursuant to which such Senior Indebtedness of the Company was issued beyond the period of grace, unless and until such default on such Senior Indebtedness of the Company shall have been cured or waived. (Subordinated Indenture Section 3.02.) Except as hereinafter provided, upon any distribution of assets of the Company in connection with any dissolution, winding up, liquidation, reorganization, bankruptcy or other similar proceeding relative to the Company, its creditors or its property, the holders of all Senior Indebtedness of the Company will first be entitled to receive payment in full of the principal thereof and premium, if any, and interest due thereon before the holders of the Subordinated Debt Securities are entitled to receive any payment of the principal of and premium, if any, or interest on the Subordinated Debt Securities. (Subordinated Indenture Section 3.02.) By reason of such subordination, in the event of insolvency, creditors of the Company who are not holders of Senior Indebtedness of the Company or of the Subordinated Debt Securities may recover less, ratably, than holders of Senior Indebtedness of the Company but may recover more, ratably, than holders of the Subordinated Debt Securities. GLOBAL SECURITIES The Debt Securities of a series may be issued in whole or in part in the form of one or more Global Securities that will be deposited with or on behalf of a depository located in the United States (a "Depository") identified in the Prospectus Supplement relating to such series. The specific terms of the depository arrangements with respect to any Debt Securities of a series will be described in the Prospectus Supplement relating to such series. The Company anticipates that the following provisions will apply to all depository arrangements. Unless otherwise specified in an applicable Prospectus Supplement, Debt Securities which are to be represented by a Global Security to be deposited with or on behalf of a Depository will be represented by a Global Security registered in the name of such depository or its nominee. Upon the issuance of a Global Security in registered form, the Depository for such Global Security will credit, on its book-entry registration and transfer system, the respective principal amounts of the Debt Securities represented by such Global Security to the accounts of institutions that have accounts with such Depository or its nominee ("participants"). The accounts to be credited shall be designated by the underwriters or agents of such Debt Securities or by the Company, if such Debt Securities are offered and sold directly by the Company. Ownership of beneficial interests in such Global Securities will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests by participants in such Global Securities will be shown on, and the transfer of that ownership interest will be effected only through, records maintained by the Depository or its nominee for such Global Securities. Ownership 18 25 of beneficial interests in Global Securities by persons that hold through participants will be shown on, and the transfer of that ownership interest within such participant will be effected only through, records maintained by such participant. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to transfer beneficial interests in a Global Security. So long as the Depository for a Global Security in registered form, or its nominee, is the registered owner of such Global Security, such Depository or such nominee, as the case may be, will be considered the sole owner or holder of the Debt Securities of the series represented by such Global Security for all purposes under the respective Indentures governing such Debt Securities. Except as set forth below, owners of beneficial interests in such Global Security will not be entitled to have Debt Securities of the series represented by such Global Security registered in their names, will not receive or be entitled to receive physical delivery of Debt Securities of such series in definitive form, and will not be considered the owners or holders thereof under the applicable Indenture. Payment of principal of, premium, if any, and any interest on Debt Securities of a series registered in the name of or held by a Depository or its nominee will be made to the Depository or its nominee, as the case may be, as the registered owner or the holder of the Global Security representing such Debt Securities. None of the Company, the Trustee, any Paying Agent, or the applicable Debt Security Registrar for such Debt Securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security for such Debt Securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Company expects that the Depository for Debt Securities of a series, upon receipt of any payment of principal, premium or interest in respect of a permanent Global Security, will credit immediately participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such Global Security as shown on the records of the Depository. The Company also expects that payments by participants to owners of beneficial interests in such Global Security held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name," and such payments will be the responsibility of such participants. However, the Company has no control over the practices of the Depository and/or the participants and there can be no assurance that these practices will not be changed. A Global Security may not be transferred except as a whole by the Depository for such Global Security to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a successor of such Depository or a nominee of such successor. If a Depository for Debt Securities of a series is at any time unwilling or unable to continue as depository and a successor depository is not appointed by the Company within 90 days, the Company will issue Debt Securities of such series in definitive registered form in exchange for the Global Security or Securities representing such Debt Securities. In addition, the Company may at any time and in its sole discretion determine not to have any Debt Securities of a series in registered form represented by one or more Global Securities and, in such event, will issue Debt Securities in definitive form in exchange for the Global Security or Securities representing such Debt Securities. In any such instance, an owner of a beneficial interest in a Global Security will be entitled to physical delivery in definitive form of Debt Securities of the series represented by such Global Security equal in principal amount to such beneficial interest and to have such Debt Securities registered in its name. 19 26 EVENTS OF DEFAULT AND NOTICE THEREOF Each of the Indentures defines an Event of Default with respect to any series of Debt Securities as being any one of the following events and such other events as may be established for the Debt Securities of a particular series (as set forth in the related Prospectus Supplement): (a) failure to pay interest on the Debt Securities when due, continued for 30 days; (b) failure to pay (whether or not prohibited by any subordination provisions, if applicable) principal (including any sinking fund installment) of or premium, if any, on the Debt Securities when due; (c) failure to observe or perform any other covenant of the Company set forth in the applicable Indenture or the Debt Securities of such series, continued for 60 days after notice as provided in such Indenture; and (d) certain events of bankruptcy, insolvency or reorganization in respect of the Company. (Section 7.01.) Within 90 days after the occurrence of a Default known to the Trustee, the Trustee is required to transmit notice thereof to the holders of the applicable Series of Debt Securities. Except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Debt Security, or in the payment of any sinking fund installment, the Trustee may withhold such notice if and so long as it in good faith determines that the withholding of such notice is in the interests of holders of the Debt Securities. (Section 7.07.) If an Event of Default in respect of a particular series of Senior Debt Securities shall occur and be continuing, the Trustee or the holders of not less than 25% in aggregate principal amount of the Debt Securities of such series outstanding may declare the principal of such series due and payable immediately. (Section 7.01.) However, if prior to the entry of any judgment or decree for the accelerated amount, the Company shall pay or deposit with the Trustee all principal, premium, if any, and interest arrearage, then the holders of not less than a majority in aggregate principal amount of the Debt Securities of the affected series shall have the right to waive all defaults and the consequences of having declared all principal payments due. Such waiver will not, however, be operative as against nor impair any rights arising as a result of any subsequent Event of Default with respect to such series. (Section 7.01.) The Trustee will not be charged with knowledge of any Event of Default other than the Company's failure to make principal and interest payments unless actual written notice thereof is received by the Trustee. (Section 7.01.) No Event of Default with respect to a particular series of Debt Securities necessarily constitutes an Event of Default with respect to any other series of Debt Securities. The Indentures contain provisions regarding limitations on the right to institute legal proceedings. No holder of any Debt Securities of a particular series shall have the right to institute an action or proceeding for rights arising under the applicable Indenture unless (i) such holder has given written notice of default to the Trustee; (ii) the holders of not less than 25% of the aggregate principal amount of Debt Securities of such series shall have made a written request to the Trustee to institute an action and offered the Trustee such reasonable indemnification as it may require; (iii) the Trustee shall not have commenced such action within 60 days of receipt of such notice and indemnification offer; and (iv) no direction inconsistent with such request has been given to the Trustee by the holders of not less than a majority of the aggregate principal amount of the Debt Securities of such series then outstanding. Notwithstanding the foregoing, subject to applicable law and any applicable subordination provisions, nothing shall prevent the holders of Debt Securities from enforcing payment of the principal of or premium, if any, or interest on their Debt Securities. No holder of Debt Securities of a particular series may have the right to prejudice the rights or obtain priority or preference over the rights of any other holder of Debt Securities of such series. (Section 7.04.) The holders of a majority in aggregate principal amount of the Debt Securities of such series outstanding at the time may direct the time, method and place of conducting any proceeding for any 20 27 remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided, however, that the Trustee shall have the right to decline to follow such direction if, being advised by counsel, the Trustee determines that the action so directed may not lawfully be taken, or if the Trustee in good faith determines that the action so directed would be unduly prejudicial to the holders of the Debt Securities not taking part in such action or would involve the Trustee in personal liability. (Section 7.06.) Each Indenture provides that, in case an Event of Default in respect of a particular series of Debt Securities shall occur (which shall not have been cured or waived), the Trustee will be required to use the degree of care of a prudent man in the conduct of his own affairs. (Section 8.01.) Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or power under the applicable Indenture at the request of any of the holders of the Debt Securities of such series unless they shall have offered to the Trustee reasonable security or indemnity. (Section 8.02.) The Company will be required to furnish to the Trustee annually a statement as to the fulfillment by the Company of all of its obligations under the relevant Indenture. (Section 5.06.) DEFEASANCE The Company may terminate its obligations under the applicable Indenture with respect to the Debt Securities of a series at any time by acquiring and delivering all outstanding Debt Securities of such series to the Trustee for cancellation. The Company may also terminate all of its obligations under the applicable Indenture with respect to the Debt Securities of a series, other than its obligations in respect of payment of principal of and interest on the Debt Securities of such series, at any time by depositing in trust with the Trustee money or non-callable U.S. Government Obligations sufficient to pay all remaining indebtedness on the Debt Securities of such series. Money or securities so deposited in trust with the Trustee is for the sole benefit of the holders of the Debt Securities of such series and, to the extent allocated for payment of the Debt Securities of such series, shall not be subject to any subordination provisions of the Subordinated Indenture. (Section 13.01.) MERGER AND CONSOLIDATION The Company may merge with another corporation if the Company is the surviving corporation, or may consolidate with or merge into another corporation or transfer all or substantially all of its assets to another corporation if the resulting, surviving or transferee corporation assumes all obligations of the Company under the Debt Securities of each series and the Indentures, and is not immediately thereafter in default under any covenant in the Indentures. (Article Twelve.) MODIFICATION OF THE INDENTURES With the consent of the holders of not less than a majority in aggregate principal amount of the outstanding Debt Securities of a particular series, the related Indenture, the rights and obligations of the Company and the rights of the holders of such series of Debt Securities may be modified by the Company and the Trustee. However, no modification of the terms of payment of principal of or premium, if any, or interest on Debt Securities of any series, and no modification reducing the percentage of outstanding Debt Securities of a series required for modification, will be effective against any holder of a Debt Security of such series affected thereby without the holder's consent. The Company and the Trustee may 21 28 also enter into supplemental indentures, without obtaining the consent of the holders of any series of Debt Securities, to cure any ambiguity or to correct or supplement any provision of the applicable Indenture or any supplemental indenture which may be defective or inconsistent with any other provision, to pledge any property to or with the Trustee or to make any other provisions with respect to matters or questions arising under the Indentures, provided that such action shall not adversely affect the interests of the holders of the Debt Securities. Such supplemental indentures may also be entered into without the consent of holders of any series of Debt Securities to set forth the terms of additional series of Debt Securities, to evidence the succession of another person to the Company or to add to the covenants of the Company. (Article Eleven.) CERTIFICATES AND OPINIONS TO BE FURNISHED TO TRUSTEE Each Indenture provides that, in addition to such other certificates or opinions as may be specifically required by other provisions of such Indenture, every application by the Company for action by the Trustee thereunder shall be accompanied by a certificate of certain officers of the Company and an opinion of counsel (who may be counsel for the Company) stating that, in the opinion of the signers, all conditions precedent to such action have been complied with. (Section 15.07.) REPORT TO HOLDERS OF DEBT SECURITIES Audited financial statements of the Company will be provided annually to holders of Debt Securities. (Section 6.03.) The Trustee is required to submit an annual report to the holders of the Debt Securities regarding, among other things, the Trustee's eligibility to serve as such, the priority of the Trustee's claims regarding certain advances made by it, and any action taken by the Trustee materially affecting the Debt Securities. THE TRUSTEE Texas Commerce Bank National Association, whose Corporate Trust Office is located at 1900 Pacific Avenue, Dallas, Texas 75201, will be the Trustee under the Subordinated Indenture with respect to each series of Subordinated Debt Securities issued thereunder and the Trustee under the Senior Indenture with respect to each series of Senior Debt Securities issued thereunder. Texas Commerce Bank National Association also serves as Trustee with respect to the Company's $100,000,000 8.75% subordinated debentures due March 1, 2007, its $20,000,000 8.80% subordinated debentures due June 30, 2007, and its $100,000,000 7-3/8% subordinated debentures due June 1, 2005, all previously issued under the Subordinated Indenture, as supplemented by a Subordinated Indenture Supplement dated as of March 12, 1987, a Subordinated Indenture Supplement dated as of June 17, 1987, and a Subordinated Indenture Supplement dated as of June 9, 1995, respectively. Pursuant to applicable provisions of the Indentures and the Trust Indenture Act of 1939, as amended, governing trustee conflicts of interest, any uncured Event of Default with respect to any series of Senior Debt Securities will force the Trustee to resign as trustee under either the Subordinated Indenture or the Senior Indenture. Likewise, any uncured Event of Default with respect to any series of Subordinated Debt Securities will force the Trustee to resign as trustee under either the Senior Indenture or the Subordinated Indenture. Any such resignation will require the appointment of a successor trustee under the applicable Indenture in accordance with the terms and conditions thereof. 22 29 Chemical Bank, an affiliate of the Trustee, serves as trustee under an indenture dated as of May 1, 1991, and an indenture supplement dated as of May 10, 1991, with respect to the Company's $100,000,000 principal amount of 9.05% senior notes due May 1, 1996. Centex and its affiliates maintain other banking relationships in the ordinary course of business with the Trustee and its affiliates. The Trustee may resign or be removed by the Company with respect to one or more series of Debt Securities and a successor trustee may be appointed to act with respect to any such series. The holders of a majority in aggregate principal amount of the Debt Securities of any series may remove the Trustee with respect to the Debt Securities of such series. (Section 8.10.) Each Indenture contains certain limitations on the right of the Trustee thereunder, in the event that it becomes a creditor of the Company, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. (Section 8.13.) RATINGS Particular series of Debt Securities may be rated by one or more nationally recognized statistical rating agencies. The rating agency or agencies and rating or ratings to be assigned with respect to such series of Debt Securities will be specified in the related Prospectus Supplement. PLAN OF DISTRIBUTION The Company may sell Debt Securities to or through underwriters, and also may sell Debt Securities directly to other purchasers or through agents. The distribution of the Debt Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. In connection with the sale of Debt Securities, underwriters may receive compensation from the Company, or from purchasers of Debt Securities for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell Debt Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of Debt Securities may be deemed to be underwriters, and any discounts or commissions received by them from the Company and any profit on the resale of Debt Securities by them may be deemed to be underwriting discounts and commissions, under the Securities Act of 1933, as amended (the "Act"). Any such underwriter or agent will be identified, and any such compensation received from the Company will be described, in the Prospectus Supplement. The Debt Securities, when first issued, will have no established trading market. Any underwriters or agents to or through whom Debt Securities are sold by the Company for public offering and sale may make a market in such Debt Securities, but such underwriters or agents will not be obligated to do so and may discontinue any market making activities at any time without notice. No assurance can be given as to the existence or the liquidity of any trading market for any Debt Securities. 23 30 If so indicated in the Prospectus Supplement, the Company will authorize underwriters or other persons acting as the Company's agents to solicit offers by certain institutions to purchase Debt Securities from the Company pursuant to contracts providing for payment and delivery on a future date. Institutions with which such contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases such institutions must be approved by the Company. The obligations of any purchaser under any such contract will be subject to the condition that the purchase of the Debt Securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which such purchaser is subject. The underwriters and such other agents will not have any responsibility in respect of the validity or performance of such contracts. Under agreements which may be entered into by the Company, underwriters and agents who participate in the distribution of Debt Securities may be entitled to indemnification by the Company against certain liabilities, including liabilities under the Act. The specific terms and manner of sale of specific series of Debt Securities offered hereby are set forth or summarized in an accompanying Prospectus Supplement. LEGAL OPINIONS The validity of the Debt Securities offered hereby and certain other legal matters will be passed upon for the Company by Raymond G. Smerge, Vice President, Chief Legal Officer and Secretary of the Company. Certain legal matters in connection with the Debt Securities offered hereby will be passed upon for the Company by Thompson & Knight, A Professional Corporation, Dallas, Texas, special counsel for the Company. EXPERTS The consolidated balance sheets of Centex Corporation and its subsidiaries as of March 31, 1995 and 1994, and the related consolidated statements of earnings, stockholders' equity and cash flows for each of the three years in the period ended March 31, 1995, incorporated by reference in the Joint Annual Report on Form 10-K, as amended, of the Company and 3333 Holding Corporation and Centex Development Company, L.P. for the fiscal year ended March 31, 1995, and incorporated by reference in this Prospectus, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated herein by reference in reliance upon the authority of said firm as experts in accounting and auditing in giving said report. 24 31 ================================================== ===================================== NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT $ OR THE PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN CENTEX CORPORATION OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES OFFERED BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES [DEBT SECURITIES] IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS ---------- CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. Prospectus Supplement ------------ ---------- TABLE OF CONTENTS Page ---- Prospectus Supplement Use of Proceeds . . . . . . . . . . . . . . . . S-2 [UNDERWRITERS] Capitalization . . . . . . . . . . . . . . . . S-2 [Ratings . . . . . . . . . . . . . . . . . . . S-3] [Recent Developments . . . . . . . . . . . . . S-3] Description of [Debt Securities] . . . . . . . S-3 Underwriting . . . . . . . . . . . . . . . . . S-4 [DATE] Prospectus Available Information . . . . . . . . . . . . . 2 Incorporation of Certain Documents by Reference . . . . . . . . . . . . . . . . 2 The Company . . . . . . . . . . . . . . . . . . 3 Use of Proceeds . . . . . . . . . . . . . . . . 3 Ratio of Earnings to Fixed Charges . . . . . . 3 Summary of Selected Financial Data . . . . . . 4 Business . . . . . . . . . . . . . . . . . . . 4 Description of Debt Securities . . . . . . . . 14 Plan of Distribution . . . . . . . . . . . . . 23 Legal Opinions . . . . . . . . . . . . . . . . 24 Experts . . . . . . . . . . . . . . . . . . . . 24 =================================================== =====================================
32 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION SEC registration fee . . . . . . . . . . . . . . . . . . . . . . . . $ 34,483 Trustee's fees and expenses (including legal fees) . . . . . . . . . 20,000 Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . 25,000 Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . 25,000 Printing expenses . . . . . . . . . . . . . . . . . . . . . . . . . 10,000 Blue Sky fees and expenses (including legal fees) . . . . . . . . . 10,000 Rating Agency fees . . . . . . . . . . . . . . . . . . . . . . . . . 65,000 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000 -------- Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $194,483 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant is a Nevada corporation. Under Section 78.751 of the Nevada General Corporation Law, the Registrant has the power to indemnify its officers and directors, subject to certain limitations. In addition, an amendment to Chapter 78 of the Nevada Revised Statutes was enacted by the State of Nevada in March 1987 in order to permit Nevada corporations to include in their articles of incorporation a provision eliminating the personal liability of their directors and officers to the corporation or its stockholders for damages resulting from certain breaches of fiduciary duty. An amendment to the Articles of Incorporation of the Registrant was adopted by its stockholders at the annual meeting thereof held on July 15, 1987 in order to effect the permitted limitation on liability. Reference is made to Article Tenth of the Registrant's Restated Articles of Incorporation incorporated by reference as Exhibit 4.1 hereto and to Article VI of the Registrant's By-laws incorporated by reference as Exhibit 4.2 hereto. Reference is also made to the indemnification provisions of Section 8 of the form of Underwriting Agreement filed as Exhibit 1.1 hereto for provisions relating to the indemnification of directors, officers and controlling persons against certain liabilities, including liabilities under the Securities Act of 1933, as amended. The Registrant has entered into indemnification contracts with the Registrant's directors as such, and with its directors in their capacities (i) as officers, employees or agents of the Registrant and as directors or officers of the various subsidiaries of the Registrant; (ii) as directors, officers, employees or agents of other companies or enterprises when they are serving in any such capacity at the request of the Registrant; and (iii) as a fiduciary with respect to any employee benefit plan or trust of the Registrant or any subsidiary of the Registrant. It is anticipated that similar contracts may be entered into, from time to time, with certain officers of the Registrant and its subsidiaries who are not directors of the Registrant. The general effect of the indemnification contracts is to provide that the indemnitees shall be indemnified to the fullest possible extent permitted by law against all expenses (including attorneys' fees), judgments, II-1 33 fines and amounts paid in settlement actually and reasonably incurred by them in any action or proceeding, including any action by or in the right of the Registrant, by reason of their service in the foregoing capacities. The indemnification contracts were approved by the Registrant's stockholders at the annual meeting of stockholders held on July 16, 1986. The Registrant also maintains insurance to protect itself and its directors, officers, employees and agents against expenses, liabilities and losses incurred by such persons in connection with their service in the foregoing capacities. The foregoing summaries are necessarily subject to the complete text of the statute, articles of incorporation, by-laws, agreements and insurance policies referred to above and are qualified in their entirety by reference thereto. ITEM 16. EXHIBITS The information required by this Item 16 is set forth in the Index to Exhibits accompanying this Registration Statement. ITEM 17. UNDERTAKINGS (a) Rule 415 offering. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registrant Statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement II-2 34 relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Filings incorporating subsequent Exchange Act documents by reference. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Acceleration of effectiveness. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions of Item 15, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. (d) Rule 430A offering. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post- effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-3 35 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, as of May 18, 1995. CENTEX CORPORATION (Registrant) By: /s/ Laurence E. Hirsch ---------------------------------- Laurence E. Hirsch Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes Laurence E. Hirsch, William J Gillilan III and David W. Quinn, or any of them, as attorney-in- fact to execute in the name and on behalf of each such person individually and in each capacity stated below and to file any amendments to this Registration Statement, including any and all pre-effective and post-effective amendments, with all exhibits thereto and other documents in connection therewith.
SIGNATURES CAPACITY IN WHICH SIGNED DATE ---------- ------------------------ ---- /s/ Laurence E. Hirsch Chairman of the Board and May 18, 1995 ----------------------------------------- Chief Executive Officer; Laurence E. Hirsch Director (Principal Executive Officer) /s/ William J Gillilan III President and Chief May 18, 1995 ----------------------------------------- Operating Officer; Director William J Gillilan III /s/ David W. Quinn Executive Vice President and May 18, 1995 ----------------------------------------- Chief Financial Officer; David W. Quinn Director (Principal Financial Officer)
II-4 36
SIGNATURES CAPACITY IN WHICH SIGNED DATE ---------- ------------------------ ---- /s/ Michael S. Albright Vice President-Finance May 18, 1995 ----------------------------------------- and Controller Michael S. Albright (Principal Accounting Officer) /s/ Alan B. Coleman Director May 18, 1995 ----------------------------------------- Alan B. Coleman /s/ Dan W. Cook III Director May 18, 1995 ----------------------------------------- Dan W. Cook III /s/ Juan L. Elek Director May 18, 1995 ----------------------------------------- Juan L. Elek /s/ Clint W. Murchison, III Director May 18, 1995 ----------------------------------------- Clint W. Murchison, III /s/ Charles H. Pistor Director May 18, 1995 ----------------------------------------- Charles H. Pistor /s/ Paul R. Seegers Director May 18, 1995 ----------------------------------------- Paul R. Seegers /s/ Paul T. Stoffel Director May 22, 1995 ----------------------------------------- Paul T. Stoffel
II-5 37 INDEX TO EXHIBITS
EXHIBIT SEQ. NO. NUMBER Page ------ -------- 1.1 Form of Underwriting Agreement, including form of Pricing Agreement 4.1 Restated Articles of Incorporation of the Registrant (filed as Exhibit 3.1 to the Joint Annual Report of the Registrant, 3333 Holding Corporation and Centex Development Company, L.P. on Form 10-K for the fiscal year ended March 31, 1993 (the "1993 10-K"), and incorporated herein by reference) 4.2 By-laws of the Registrant (filed as Exhibit 3.2 to the 1993 10-K, and incorporated herein by reference) 4.3 Form of Indenture with respect to Senior Debt Securities ("Senior Indenture"), including form of Senior Debt Security, to be entered into between the Registrant and Texas Commerce Bank National Association, as Trustee 4.4 Form of Indenture Supplement to Senior Indenture 4.5 Indenture with respect to Subordinated Debt Securities ("Subordinated Indenture"), including form of Subordinated Debt Security, dated as of March 12, 1987, between the Registrant and Texas Commerce Bank National Association, as Trustee (filed as Exhibit 4.7 to the 1993 10-K, and incorporated herein by reference) 4.6 Form of Indenture Supplement to Subordinated Indenture (filed as Exhibit 4.4 to the Registrant's Form S-3 Registration Statement (File No. 33-8928), and incorporated herein by reference) 5.1 Opinion of Raymond G. Smerge, Esq. 12.1 Computation of Ratio of Earnings to Fixed Charges 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Raymond G. Smerge, Esq. (contained in his opinion filed as Exhibit 5.1) 24.1 Power of attorney of certain signatories (contained on signature page included in Part II of the Registration Statement) 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, with respect to Trustee for Senior Debt Securities 25.2 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, with respect to Trustee for Subordinated Debt Securities 99.1 Form of Prospectus Supplement (contained in Part I of this Registration Statement)
II-6 EX-1.1 2 FORM OF UNDERWRITING AGREEMENT 1 EXHIBIT 1.1 [Form of July 21, 1995] CENTEX CORPORATION Debt Securities UNDERWRITING AGREEMENT __________________________, 199___ To the Representatives of the several Underwriters named in the respective Pricing Agreements hereinafter described. Dear Sirs: From time to time Centex Corporation, a Nevada corporation (the "Company"), proposes to enter into one or more Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the "Underwriters" with respect to such Pricing Agreement and the securities specified therein), certain of its debt securities (the "Securities"), which may be senior debt securities or subordinated debt securities as specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the "Designated Securities"). The term and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the "Indenture") identified in such Pricing Agreement. 1. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom you, designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto, will act as representatives (the "Representatives"). The term "Representative" also refers to a single firm acting as sole representative of the Underwriters and to Underwriters who act without any firm being designated as their representative. This Underwriting Agreement (this "Agreement") shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase any of the Securities. The obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the 2 principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint. 2. The Company represents and warrants to, and agrees with, each of the Underwriters that: (a) A registration statement (File No. 33-___________________) in respect of the Securities has been filed with the Securities and Exchange Commission (the "Commission") in the form heretofore delivered or to be delivered to the Representatives and, excluding exhibits to such registration statement, to the Representatives for each of the other Underwriters, and such registration statement in such form has been declared effective by the Commission and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement being hereinafter called a "Preliminary Prospectus;" the various parts of such registration statement, including all exhibits thereto (other than the two Statements of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee, on Form T-1), each as amended, at the time such part became effective, being hereinafter collectively called the "Registration Statement;" the prospectus relating to the Securities and the prospectus supplement relating to any particular issuance of Designated Securities, in the form in which it has most recently been filed, or transmitted for filing, with the Commission on or prior to the date of this Agreement, being hereinafter collectively called the "Prospectus;" any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act of 1933, as amended (the "Act"), as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such amendment or supplement; and any reference to the Prospectus, as amended or supplemented, shall be deemed to refer to the Prospectus as amended or supplemented in relation to the applicable Designated Securities in the form in which it is first filed, or transmitted for filing, with the Commission pursuant to Rule 424 under the Act, including any documents incorporated by reference therein as of the date of such filing or transmission); (b) The documents incorporated by reference in the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of -2- 3 the Exchange Act and the rules and regulations of the Commission thereunder; and any further documents so filed and incorporated by reference in 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; (c) Each part of the Registration Statement and the Prospectus conforms, and any amendments or supplements to the Registration Statement or the Prospectus will conform, on the date of filing thereof with the Commission, in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), as applicable, and the rules and regulations of the Commission thereunder; the Registration Statement and any amendment thereto, as of the applicable effective date, did not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus and any supplement thereto, as of the applicable filing date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of an Underwriter of Designated Securities expressly for use in the Prospectus, as amended or supplemented, relating to such Securities; (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 an adverse effect on the business, assets, financial position or prospects of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus; 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 of the Company or any of its subsidiaries; (ii) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; (iii) no event has occurred that would result in a material write-down in assets; (iv) there have been no material transactions entered into by the Company, other than those publicly disclosed or in the ordinary course of business; (v) the Company has not repurchased any of its outstanding capital stock except as set forth in or contemplated by the Prospectus; and (vi) there have been no dividends or distributions of any kind declared, paid or made by the Company in respect of its capital stock except for regular cash dividends paid in the ordinary course of business; -3- 4 (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, and each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; each of the Company and its subsidiaries has full power and authority (corporate and other) 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 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 of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and (except for directors' qualifying shares and except 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 Designated Securities are executed, authenticated, issued and delivered against payment therefor pursuant to this Agreement, the Indenture and the Pricing Agreement with respect to such Designated Securities, such Designated Securities will have been 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; the Indenture has been duly authorized, executed and delivered by the Company and constitutes 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; at the Time of Delivery (as defined in Section 4 hereof), the -4- 5 Indenture will have been duly qualified under the Trust Indenture Act; and the Securities and the Indenture will conform in all material respects to the descriptions thereof in the Prospectus; (i) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture, this Agreement and any Pricing Agreement, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation, as amended or restated, or the Bylaws of the Company or any 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 any Pricing Agreement or the Indenture, except such as have been, or will have been prior to the Time of Delivery, obtained under the 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, would individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (k) Arthur Andersen LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder; (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 upon the business, assets, financial position, or prospects of the Company and its subsidiaries, considered as a whole; (m) The consolidated financial statements of the Company and its subsidiaries, including accompanying notes, included or incorporated by reference in the Prospectus, -5- 6 comply in all material respects with the requirements of the 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, consistently applied throughout the periods involved except as may be expressly stated in the notes thereto. The financial information and statistical data set forth in the Prospectus under the caption "Summary of Selected Financial Data" are fairly presented 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, 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 on the business of the Company and its subsidiaries, taken as a whole, and the Company has received no notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; (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, and the Pricing Agreement with respect to the Designated Securities, when executed and delivered by the Company, will constitute 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 hereunder may be limited by applicable laws or equity principles; (p) Except as described in the Prospectus, 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 materially and adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; (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 filed as required; -6- 7 (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 upon the Company and its subsidiaries, taken as a whole, 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 materially adversely affect the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; and (s) The conditions to the use of a registration statement on Form S-3 under the 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. 3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus, as amended or supplemented. 4. Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in definitive or book-entry form, as specified in the Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours' prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor (by wire transfer of immediately available funds to such bank account or accounts as may be specified by the Company) to the Company at the time and date of delivery of such Securities or at such other time and date as the Representatives and the Company may agree upon in writing, such time and date being called the "Time of Delivery" for such Securities. 5. The Company agrees with each of the Underwriters of any Designated Securities: (a) To make no further amendment or any supplement to the Registration Statement or Prospectus, as amended or supplemented, after the date of the Pricing Agreement relating to such Securities and prior to the Time of Delivery of such Securities that shall be disapproved by the Representatives for such Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or become effective or any supplement to the Prospectus or any amended Prospectus has been filed, or transmitted for filing, and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Securities; and during such same period to advise you, promptly after it receives notice thereof, of the issuance by the Commission -7- 8 of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; (b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of such Securities; provided that, in connection therewith, the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) To furnish the Underwriters with copies of the Prospectus, as amended or supplemented, in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required at any time in connection with the offering or sale of the Securities and if at such time any event 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 during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or omission or effect such compliance; (d) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement and of the post-effective amendment thereto, hereinafter referred to, an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158); (e) During the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the earlier of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company by the Representatives, and (ii) the Time of Delivery for such Designated Securities, not to -8- 9 offer, sell, contract to sell or otherwise dispose of any debt securities of the Company that mature more than one year after such Time of Delivery and that are substantially similar to such Designated Securities, without the prior written consent of the Representatives; (f) To furnish to the holders of the Securities as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement) condensed consolidated financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) During a period of two years from the effective date of the Registration Statement, to furnish to the Representatives copies of all reports or other communications (financial or other) furnished to stockholders, and deliver to the Representatives (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which the Securities or any class of securities of the Company is listed other than registration statements filed under the Act; and (ii) such additional information concerning the business and financial condition of the Company as the Representatives may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission), provided such information is prepared in the ordinary course of business and is not otherwise confidential; and further provided that the foregoing restriction on access to information shall not prohibit the Representatives' access to such information necessary for the defense of any litigation threatened or filed against the Underwriters relating to this Agreement and the transactions contemplated hereby; and (h) to apply in the manner described under "Use of Proceeds" in the Prospectus, the proceeds it receives from the sale of the Securities. 6. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Pricing Agreement, the Indenture, the Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel in -9- 10 connection with such qualification and in connection with any Blue Sky or legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) the filing fees incident to any required review, if any, by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of the trustee designated in the Indenture (the "Trustee") and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make. 7. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (b) __________________________________, counsel for the Underwriters, shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the validity of the Indenture, the Designated Securities, the Registration Statement, the Prospectus, as amended or supplemented, and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) Raymond G. Smerge, Vice President, Chief Legal Officer and Secretary (as to (i) through (vi) and (ix), (xii) and (xiii) below) and Thompson & Knight, A Professional Corporation, special counsel for the Company (as to (vii), (viii), (x), (xi) and (xiii) below), shall have furnished to the Representatives their respective written opinions, dated the Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives, to the effect that: (i) 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 full corporate power and authority to own its properties and conduct its business as described in the Prospectus, as amended or supplemented; -10- 11 (ii) The Company has an authorized capitalization as set forth in the Prospectus, as amended or supplemented, 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; (iii) 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 failure to so qualify would have a material adverse effect upon the Company and its subsidiaries, taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon certificates issued by various state authorities as deemed necessary by such counsel); (iv) Each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; each subsidiary of 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 failure to so qualify would have a material adverse effect upon the Company and its subsidiaries, taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon certificates issued by various state authorities as deemed necessary by such counsel); and all of the outstanding shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and nonassessable, and (except for directors' qualifying shares and except 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; (v) To the best of such counsel's knowledge and other than as set forth or contemplated, or incorporated by reference, in the Prospectus, as amended or supplemented, 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 which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the business, assets, financial position or prospects of the Company and its subsidiaries, taken as a whole; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company and each constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with their respective 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 that may limit the availability of certain remedies (including specific performance), and except to the extent that rights of indemnification hereunder may be limited by applicable law or equity principles; -11- 12 (vii) The Designated Securities have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, 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 that may limit the availability of certain remedies (including specific performance); and the Designated Securities and the Indenture conform in all material respects to the descriptions thereof in the Prospectus, as amended or supplemented; (viii) The Indenture has been duly authorized, executed and delivered by the Company and constitutes 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 that may limit the availability of certain remedies (including specific performance); and the Indenture has been duly qualified under the Trust Indenture Act; (ix) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, and this Agreement and the Pricing Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach 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 known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation, as amended or restated, or the Bylaws of the Company or any 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; (x) To the best of such counsel's knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Designated Securities or the consummation of the other transactions contemplated by this Agreement, the Pricing Agreement or the Indenture, except such as have been obtained under the 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 Designated Securities by the Underwriters; (xi) The Registration Statement is effective under the Act, and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under the Act; -12- 13 (xii) The documents incorporated by reference in the Prospectus, as amended or supplemented (other than the financial statements, statistical data and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; such counsel has no reason to believe that any of such documents, when they became effective or were so filed, as the case may be (other than the financial statements, statistical data and related schedules therein, as to which such counsel need express no belief), contained, in the case of a registration statement that became effective under the Act, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein not misleading, and, in the case of other documents that were filed under the Act or the Exchange Act with the Commission, 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 such counsel does 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; and (xiii) The Registration Statement and the Prospectus (other than the financial statements, statistical data and related schedules therein, as to which such counsel need express no opinion), at the effective date thereof and at the Time of Delivery for the Designated Securities complied as to form in all material respects with the requirements of the Act and the Trust Indenture Act, as applicable, and the rules and regulations thereunder; such counsel has no reason to believe that, as of the effective date of the Registration Statement, the Registration Statement (other than the financial statements, statistical data and related schedules therein, as to which such counsel need express no belief) 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 Time of Delivery, the Prospectus (or, as of its date, any amendment or supplement thereto made by the Company prior to the Time of Delivery) (other than the financial statements, statistical data and related schedules therein, as to which such counsel need 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 light of the circumstances under which they were made, not misleading. (d) On the date of the Pricing Agreement for such Designated Securities and at the Time of Delivery for such Designated Securities, Arthur Andersen LLP, who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, shall have furnished to the Representatives a letter, dated as of the date of such Pricing Agreement, and a letter -13- 14 dated such Time of Delivery, respectively, to the effect set forth in Annex II hereto, and with respect to such letter dated such Time of Delivery, as to such other matters as the Representatives may reasonably request and in form and substance reasonably satisfactory to the Representatives; (e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, as amended or supplemented, any 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, otherwise than as set forth or contemplated in the Prospectus, as amended or supplemented, and (ii) since the respective dates as of which information is given in the Prospectus, as amended or supplemented, there shall not have been any material change in the capital stock (other than through exercise of employee stock options) or long-term debt of the Company and any of its subsidiaries, taken as a whole (other than borrowings and repayments made in the ordinary course of business), or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus, as amended or supplemented; (f) Subsequent to the date of the Pricing Amendment relating to the Designated Securities, no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act; (g) Subsequent to the date of the Pricing Amendment relating to the Designated Securities, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either federal or New York State authorities; or (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date of such Pricing Agreement, of a national emergency or war if the effect of any such event specified in this clause (iii), in the reasonable judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus, as amended or supplemented; and (h) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities, certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company herein at and as of such Time of -14- 15 Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section and as to such other matters as the Representatives may reasonably request. 8. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter expressly for use therein; provided further, that the Company shall not be liable to the Underwriters under the indemnity agreement in this subsection (a) with respect to any Preliminary Prospectus or any preliminary prospectus supplement to the extent that any such loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or the Prospectus as then amended or supplemented if the Company had previously furnished copies thereof to such Underwriter. (b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Underwriter expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim. -15- 16 (c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim with respect thereto is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to the such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. (d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of such Designated Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 information supplied by the Company on the one hand or such Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were 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 account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions with respect thereto) referred to above in -16- 17 this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint. (e) The obligations of the Company under this Section 8 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act. 9. (a) If any Underwriter shall default in its obligation to purchase the Designated Securities that it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter, the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus that, in the opinion of the Representatives, may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Designated Securities. (b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives or the Company as provided in subsection (a) above, the aggregate principal amount of such -17- 18 Designated Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each nondefaulting Underwriter to purchase the principal amount of Designated Securities that such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each nondefaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities that such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require nondefaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any nondefaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities. 11. If any Pricing Agreement shall be terminated pursuant to Section 9 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Section 6 and Section 8 hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Section 6 and Section 8 hereof; and further provided, however, that notwithstanding the foregoing, the Company shall have no obligation to reimburse the Underwriters as described above if Designated Securities are not delivered by or on behalf of the Company as provided herein because of the failure of counsel for the Underwriters to furnish the opinion or opinions -18- 19 contemplated by Section 7(b) hereof, or because of the occurrence of any of the events described in Section 7(f) or (g) hereof. The Company shall not in any event be liable to any Underwriter for loss of anticipated profits from the transactions contemplated by this Agreement, the Pricing Agreement or otherwise. 12. In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement. All statements, requests, notices and agreements hereunder shall be in writing or by telegram if promptly confirmed in writing, and if to the Underwriters shall be sufficient in all respects if delivered or sent by registered mail to the address of the Representatives, as set forth in the Pricing Agreement; and if to the Company shall be sufficient in all respects if delivered or sent by registered mail to the address of the Company set forth in the Registration Statement, Attention: Vice President, Chief Legal Officer and Secretary; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by registered mail to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. 13. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Section 8 and Section 10 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any rights under or by virtue of this Agreement or any Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 14. Time shall be of the essence of this Agreement. 15. This Agreement and each Pricing Agreement shall be construed in accordance with the laws of the State of New York. 16. This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. [Remainder of page intentionally left blank.] -19- 20 If the foregoing is in accordance with your understanding, please sign and return to us two (2) counterparts hereof. Very truly yours, CENTEX CORPORATION By: ----------------------------------- Name: --------------------------------- Title: -------------------------------- -20- 21 ANNEX I PRICING AGREEMENT [Name and address of Representative(s)] _________________, 199___ Dear Sirs: Centex Corporation (the "Company") proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated __________________, 199__ (the "Underwriting Agreement"), to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be part of this Pricing Agreement to the same extent as if such provisions had been set forth in full herein, and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Prospectus, as amended or supplemented, relating to the Designated Securities that are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed, or in the case of a supplement, transmitted for filing, with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. 22 If the foregoing is in accordance with your understanding, please sign and return to us two (2) counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this Pricing Agreement and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this Pricing Agreement on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination, upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, CENTEX CORPORATION By: ----------------------------------- Name: --------------------------------- Title: -------------------------------- Accepted as of the date hereof at Dallas, Texas: [Name and address of Representative(s)] By: --------------------------- --------------------------- -2- 23 SCHEDULE I
Principal Amount of Securities to be Underwriters Purchased ------------ --------- $ -------------- Total . . . . . . . . . . . . . . . . . . . . . . $ ==============
24 SCHEDULE II Title of Designated Securities: [____]% [Senior/Subordinated Debt Securities] due ____________ Aggregate principal amount: $__________________ Price to Public: % of the principal amount of the Designated Securities, plus accrued interest from ___________ to ____________ [and accrued amortization, if any, from ___________ to _____ _____] Purchase Price by Underwriters: [____]% of the principal amount of the Designated Securities, plus accrued interest from ___________ to ____________ [and accrued amortization, if any, from ___________ to _____ ____] Specified funds for payment of purchase price: Wire transfer of immediately available funds Indenture: [Indenture, dated as of May 1, 1991, between the Company and Chemical Bank, as Trustee -- for Senior Debt Securities] [Indenture, dated as of March 12, 1987, between the Company and Texas Commerce Bank National Association, as Trustee -- for Subordinated Debt Securities] Maturity: Interest Rate: [_____]% -1- 25 Interest Payment Dates: [months and dates] Redemption Provisions: [Provisions for redemption] Sinking Fund Provisions: [The Designated Securities are entitled to the benefit of a sinking fund to retire $________ principal amount of Designated Securities on _____________ in each of the years _____ through _______ at 100% of their principal amount plus accrued interests] [, together with [cumulative] [noncumulative] redemptions at the option of the Company to retire an additional $__________________ principal amount of Designated Securities in the years _______ through ______ at 100% of their principal amount plus accrued interest]. Time of Delivery: Closing Location: Name and address of Representatives: Designated Representatives: Address for Notices, etc.: Book-Entry Provisions: [Provisions for book-entry registration of the Designated Securities] [Other terms]: -2- 26 ANNEX II DESCRIPTION OF COMFORT LETTER Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall furnish letters to the Underwriters to the effect that: (i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder; (ii) In their opinion, the financial statements and any supplementary financial information and schedules examined by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the consolidated interim financial statements, selected financial data, pro forma financial information and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letter, as indicated in their reports thereon, copies of which have been furnished to the representatives of the Underwriters (the "Representatives"); (iii) In their opinion, the unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and included or incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for such five fiscal years that were included or incorporated by reference in the Company's Annual Reports on Form 10-K for such fiscal years; (iv) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that: (A) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of changes in financial -1- 27 position included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related published rules and regulations thereunder or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with the basis for the audited consolidated statements of income, consolidated balance sheets and consolidated statements of changes in financial position included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (C) the unaudited financial statements that were not included in the Prospectus but from which were derived the unaudited condensed financial statements referred to in clause (A) and any unaudited income statement data and balance sheet items included in the Prospectus and referred to in clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (D) any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; (E) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated capital stock (other than issuances of capital stock upon exercise of options and stock appreciation rights, upon earn-outs of performance shares and upon conversions of convertible securities, in each case that were outstanding on the date of the latest balance sheet included or incorporated by reference in the Prospectus) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated net current assets or net assets or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with amounts shown in the latest balance sheet included or included or incorporated by reference in the -2- 28 Prospectus, except in each case for changes, increases or decreases that the Prospectus discloses have occurred or may occur or that are described in such letter; and (F) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in clause (E), there were any decreases in consolidated net revenues or operating profit or the total or per share amounts of consolidated net income or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Representatives, except in each case for increases or decreases that the Prospectus discloses have occurred or may occur or that are described in such letter; and (v) In addition to the examination referred to in their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (iv) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Representatives that are derived from the general accounting records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference) or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Representatives or in documents incorporated by reference in the Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement. All references in this Annex II to the Prospectus shall be deemed to refer to the Prospectus (including the documents incorporated by reference therein) as defined in the Underwriting Agreement as of the date of the letter delivered on the date of the Pricing Agreement for purposes of such letter and to the Prospectus as amended or supplemented (including the documents incorporated by reference therein) in relation to the applicable Designated Securities for purposes of the letter delivered at the Time of Delivery for such Designated Securities. -3- EX-4.3 3 FORM OF INDENTURE 1 EXHIBIT 4.3 [Form of July 21, 1995] _____________________________________________________ CENTEX CORPORATION Issuer AND TEXAS COMMERCE BANK NATIONAL ASSOCIATION Trustee ________________________ I N D E N T U R E Dated as of ______________, 199__ ________________________ SENIOR DEBT SECURITIES (Issuable in Series) _____________________________________________________ 2 TIE-SHEET of provisions of the Trust Indenture Act of 1939 with the Indenture, dated as of ______________, 199_, between Centex Corporation and Texas Commerce Bank National Association, as Trustee:
Section Section of Act of Indenture - ------ ------------ 310 (a)(1)................................... 8.09 (a)(2)................................... 8.09 (a)(3)................................... Not applicable (a)(4)................................... Not applicable (b)...................................... 8.08 and 8.10(b) (c)...................................... Not applicable 311 (a)...................................... 8.13 (b)...................................... 8.13 (c)...................................... Not applicable 312 (a)...................................... 6.01 and 6.02(a) (b)...................................... 6.02(b) (c)...................................... 6.02(c) 313 (a)...................................... 6.04(a) (b)(1)................................... Not applicable (b)(2)................................... 6.04(b) (c)...................................... 6.04(c) (d)...................................... 6.04(d) 314 (a)(1)................................... 6.03(a) (a)(2)................................... 6.03(b) (a)(3)................................... 6.03(c) (b)...................................... Not applicable (c)(1)................................... 15.07 (c)(2)................................... 15.07 (c)(3)................................... Not applicable (d)...................................... Not applicable (e)...................................... 15.07 315 (a)(1)................................... 8.01(a)(1) (a)(2)................................... 8.01(a)(2) (b)...................................... 7.07 (c)...................................... 8.01 (d)...................................... 8.01 (e)...................................... 7.08 316 (a)(1)................................... 7.01 and 7.06 (a)(2)................................... Omitted (a) last sentence........................ 9.04 (b)...................................... 7.04
-i- 3
Section Section of Act of Indenture - ------ ------------ 317 (a)...................................... 7.02 (b)...................................... 5.05 318 (a)...................................... 15.09
_______________ This tie-sheet is not a part of the Indenture as executed. -ii- 4 TABLE OF CONTENTS*
Page ---- PARTIES................................................ 1 PRELIMINARY STATEMENT.................................. 1 ARTICLE ONE. DEFINITIONS. SECTION 1.01. Certain terms defined; other terms defined in Trust Indenture Act of 1939 or by reference therein in Securities Act of 1933, as amended, to have meanings therein assigned............................... 1 Authorized Newspaper................... 1 Board of Directors..................... 2 Business Day........................... 2 Certificate of a Firm of Independent Public Accountants................... 2 Company................................ 2 Corporate Trust Office................. 2 Event of Default; default.............. 2 Holder................................. 3 Indenture.............................. 3 Officers' Certificate.................. 3 Opinion of Counsel..................... 3 Responsible Officer.................... 3 Senior Debt Security; "outstanding" with reference to Senior Debt Securities...................... 4 Senior Debt Security Register; Senior Debt Security Registrar............................ 4 Series................................. 4 Series Supplement or Supplement........ 4 Trust Indenture Act of 1939............ 5 Trustee................................ 5
__________________________________ *The Table of Contents, comprising pages i to xii inclusive, is not part of the Indenture. -iii- 5
Page ---- ARTICLE TWO. ISSUE, DESCRIPTION, FORM, EXECUTION, REGISTRATION OF TRANSFER AND EXCHANGE OF SENIOR DEBT SECURITIES. SECTION 2.01. Form of Senior Debt Securities and Certificate of Authentication.... 5 SECTION 2.02. Amount unlimited; Senior Debt Securities issuable in Series; Certain related provisions........... 10 SECTION 2.03. Authentication and delivery of Senior Debt Securities............... 11 SECTION 2.04. Date of Senior Debt Securities and denominations.................... 11 SECTION 2.05. Execution of Senior Debt Securities........................... 12 SECTION 2.06. Exchange of Senior Debt Securities........................... 13 Senior Debt Securities to be accompanied by proper instruments of transfer.......................... 13 Charges upon exchange, registration or transfer or registration of Senior Debt Securities............... 13 Restrictions on issue, registration of transfer or exchange at certain times................................ 13 SECTION 2.07. Temporary Senior Debt Securities........................... 14 SECTION 2.08. Mutilated, destroyed, lost or stolen Senior Debt Securities........................... 14 SECTION 2.09. Cancellation of surrendered Senior Debt Securities............... 15 SECTION 2.10. Provisions of the Indenture and Senior Debt Securities for the sole benefit of the parties, holders of Senior Debt Securities...................... 15
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Page ---- ARTICLE THREE. PRIORITY OF SENIOR DEBT SECURITIES. SECTION 3.01. Confirmation of subordination of certain prior debt................... 16 ARTICLE FOUR. REDEMPTION OF SENIOR DEBT SECURITIES - SINKING FUND. SECTION 4.01. Redemption prices of Senior Debt Securities...................... 16 Restriction on redemption of Senior Debt Securities............... 16 SECTION 4.02. Mailing of notice of redemption........ 17 Selection of Senior Debt Securities in case less than all Senior Debt Securities to be redeemed......................... 17 SECTION 4.03. When Senior Debt Securities called for redemption become due and payable............................ 18 SECTION 4.04. Sinking Fund; amounts and payment dates 18 SECTION 4.05. Credits against Sinking Fund payments.. 19 SECTION 4.06. Certificates and Senior Debt Securities to be delivered to the Trustee................................ 19 SECTION 4.07. Cash to be delivered to the Trustee.... 20 SECTION 4.08. Application of Sinking Fund payments to redemption of Senior Debt Securities...................... 20 SECTION 4.09. Manner of redeeming Senior Debt Securities...................... 20 Sinking Fund redemption price.......... 21 SECTION 4.10. Application of Sinking Fund............ 21 SECTION 4.11. Cancellation and destruction of redeemed Senior Debt Securities........................... 21
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Page ---- SECTION 4.12. Sinking Fund moneys to be held as security during continuance of Event of Default; exceptions......... 21 ARTICLE FIVE. PARTICULAR COVENANTS OF THE COMPANY. SECTION 5.01. Payment of principal of and premium, if any, and interest on Senior Debt Securities............... 22 SECTION 5.02. Maintenance of office or agency for registration, registration of transfer, exchange and payment of Senior Debt Securities............... 22 SECTION 5.03. Prohibition of extension of claims for interest............................. 22 SECTION 5.04. Appointment to fill a vacancy in the office of Trustee.................... 22 SECTION 5.05. (a) Duties of paying agent............ 22 (b) Company as paying agent........... 23 (c) Turnover to Trustee by paying agent or Company................ 23 (d) Holding sums in trust............. 23 SECTION 5.06. Company to furnish annual compliance certificate.......................... 23 ARTICLE SIX. LISTS OF HOLDERS OF SENIOR DEBT SECURITIES AND REPORTS BY THE COMPANY AND THE TRUSTEE. SECTION 6.01. Company to furnish Trustee information as to names and addresses of holders of Senior Debt Securities........................... 24 SECTION 6.02. (a) Trustee to preserve information as to names and addresses of holders of Senior Debt Securities................. 24
-vi- 8
Page ---- Trustee may destroy list of holders of Senior Debt Securities on certain conditions.............. 24 (b) Trustee to make information as to names and addresses of holders of Senior Debt Securities available to "applicants" or mail communications to holders of Senior Debt Securities in certain circumstances................... 24 Procedure if Trustee elects not to make information available to "applicants".................... 25 (c) Company and Trustee not accountable for disclosure of information... 25 SECTION 6.03. (a) Annual and other reports to be filed by Company with Trustee... 25 (b) Additional information and reports to be filed with Trustee and Securities and Exchange Commission...................... 26 (c) Summaries of information and reports to be transmitted by Company to holders of Senior Debt Securities.......... 26 SECTION 6.04. (a) Trustee to transmit reports to holders of Senior Debt Securities................. 26 (b) Trustee to transmit certain further reports to holders of Senior Debt Securities...................... 27 (c) To which holders of Senior Debt Securities reports are to be mailed........ 28 (d) Copies of reports to be filed with stock exchanges and Securities and Exchange Commission...................... 28
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Page ---- ARTICLE SEVEN. REMEDIES OF THE TRUSTEE AND HOLDERS OF SENIOR DEBT SECURITIES IN EVENT OF DEFAULT. SECTION 7.01. Events of Default defined.............. 28 Acceleration of maturity upon Event of Default........................... 29 Waiver of default and rescission of declaration of acceleration.......... 30 Restoration of former position and rights upon curing of all defaults... 30 SECTION 7.02. Covenant of Company to pay to Trustee whole amount due on Senior Debt Securities on default in payment of interest.................. 30 Trustee may recover judgment for whole amount due on Senior Debt Securities on failure of Company to pay.................... 31 Filing of proof of claim by Trustee in bankruptcy, reorganization, receivership, or other judicial proceedings.......................... 31 Trustee may enforce rights of action and assert claims without possession of Senior Debt Securities...................... 31 Trustee may enforce rights vested in it by Indenture by appropriate judicial proceedings.......................... 32 SECTION 7.03. Application of moneys collected by Trustee.............................. 32 SECTION 7.04. Limitation on suits by holders of Senior Debt Securities............... 33 SECTION 7.05. Remedies cumulative.................... 33 Delay or omission in exercise of rights not a waiver of default.............. 34 SECTION 7.06. Rights of holders of majority in principal amount of Senior Debt Securities of a Series to direct Trustee and to waive default.............................. 34
-viii- 10
Page ---- SECTION 7.07. Trustee to give notice of defaults known to it, but may withhold in certain circumstances................ 34 SECTION 7.08. Requirement of an undertaking to pay costs in certain suits under the Indenture or against the Trustee..... 35 ARTICLE EIGHT. CONCERNING THE TRUSTEE. SECTION 8.01. Upon Event of Default occurring and continuing, Trustee shall exercise powers vested in it, and use same degree of care and skill in their exercise, as a prudent man would use.................................. 35 Trustee not relieved from liability for negligence or willful misconduct except as provided in this Section......................... 36 (a) Prior to Event of Default and after the curing of all Events of Default which may have occurred (1) Trustee not liable except for performance of duties specifically set forth..... 36 (2) In absence of bad faith, Trustee may conclusively rely on certificates or opinions furnished it hereunder, subject to duty to examine the same if specifically required to be furnished to it........... 36 (b) Trustee not liable for error of judgment made in good faith by responsible officer unless Trustee negligent............... 36 (c) Trustee not liable for action or non-action in accordance with direction of holders of majority in principal amount of Senior Debt Securities of a Series...................... 36 Trustee not required to expend own funds 36
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Page ---- SECTION 8.02. Subject to provisions of Section 8.01: (a) Trustee may rely on documents believed genuine and properly signed or presented............. 37 (b) Sufficient evidence by certain instruments provided for........ 37 (c) Trustee may act on Opinion of Counsel......................... 37 (d) Trustee may require indemnity from holders of Senior Debt Securities................. 37 (e) Trustee not liable for action in good faith believed to be authorized...................... 37 (f) Trustee not bound to make any investigation of any document... 37 (g) Trustee may act through agent..... 38 SECTION 8.03. Trustee not liable for recitals in Indenture or in Senior Debt Securities........................... 38 No representations by Trustee as to validity of Indenture or of Senior Debt Securities............... 38 Trustee not accountable for use of Senior Debt Securities or proceeds.......................... 38 SECTION 8.04. Trustee, paying agent or Senior Debt Security Registrar may own Senior Debt Securities............... 38 SECTION 8.05. Moneys received by Trustee to be held in trust without interest....... 38 SECTION 8.06. Trustee entitled to compensation, reimbursement and indemnity.......... 38 Obligations to Trustee to be secured by lien prior to Senior Debt Securities........................... 38 SECTION 8.07. Right of Trustee to rely on Officers' Certificate where no other evidence specifically prescribed.............. 39 SECTION 8.08. (a) Trustee acquiring conflicting interest to eliminate conflict or resign....................... 40 (b) Notice to holders of Senior Debt Securities in case of failure to comply with subsection (a).................. 40
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Page ---- (c) Definition of conflicting interest 40 (d) Definition of certain terms....... 44 (e) Calculations of percentage of securities...................... 45 SECTION 8.09. Requirements for eligibility of Trustee 46 SECTION 8.10. (a) Resignation of Trustee............ 46 (b) Removal of Trustee by Company or court on application of holders of Senior Debt Securities................. 46 (c) Removal of Trustee by Company..... 47 (d) Removal of Trustee by holders of majority in principal amount of Senior Debt Securities.......... 48 (e) Time when resignation or removal of Trustee effective............ 48 (f) Company to deliver notice of appointment of successor trustee 48 SECTION 8.11. Acceptance by successor to Trustee..... 48 SECTION 8.12. Successor to Trustee by merger, consolidation or succession to business............................. 49 SECTION 8.13. (a) Limitations on rights of Trustee as a creditor to obtain payment of certain claims, within three months prior to default or during default, or to realize on property as such creditor thereafter..... 50 (b) Certain creditor relationships excluded........................ 52 (c) Definition of certain terms....... 53 ARTICLE NINE. CONCERNING THE HOLDERS OF SENIOR DEBT SECURITIES. SECTION 9.01. Evidence of action by holders of Senior Debt Securities............... 54 SECTION 9.02. Proof of execution of instruments and of holding of Senior Debt Securities...................... 54 SECTION 9.03. Who may be deemed owners of Senior Debt Securities............... 55
-xi- 13
Page ---- SECTION 9.04. Senior Debt Securities owned by Company or controlled or controlling companies disregarded for certain purposes................. 55 SECTION 9.05. Instruments executed by holders of Senior Debt Securities bind future holders.................. 56 ARTICLE TEN. MEETINGS OF HOLDERS OF SENIOR DEBT SECURITIES. SECTION 10.01. Purposes for which meetings may be called............................... 56 SECTION 10.02. Manner of calling meetings............. 57 SECTION 10.03. Call of meetings by Company or holders of Senior Debt Securities........................... 57 SECTION 10.04. Who may attend and vote at meetings.... 57 SECTION 10.05. Regulations may be made by Trustee..... 57 Conduct of the meeting................. 58 Voting rights-adjournment.............. 58 SECTION 10.06. Manner of voting at meetings and record to be kept.................... 58 ARTICLE ELEVEN. SUPPLEMENTAL INDENTURES. SECTION 11.01. Purposes for which supplemental indentures may be entered into without consent of holders of Senior Debt Securities............ 59 SECTION 11.02. Modification of Indenture with consent of holders of majority in principal amount of Senior Debt Securities of a Series.......... 60 SECTION 11.03. Effect of supplemental indentures...... 61
-xii- 14
Page ---- SECTION 11.04. Senior Debt Securities may bear notation of changes by supplemental indentures.............. 61 ARTICLE TWELVE. CONSOLIDATION, MERGER, SALE OR CONVEYANCE. Section 12.01. Consolidations and mergers of Company and conveyances permitted............ 62 Assumption of obligations of Company by successor company or transferee... 62 SECTION 12.02. Rights and duties of successor corporation.......................... 62 Appropriate changes may be made in form of Senior Debt Securities............ 63 SECTION 12.03. Opinion of Counsel..................... 63 ARTICLE THIRTEEN. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS. SECTION 13.01. Satisfaction and discharge of Indenture 63 SECTION 13.02. Application by Trustee of funds deposited for payment of Senior Debt Securities............... 64 SECTION 13.03. Repayment of moneys held by paying agent................................ 65 SECTION 13.04. Repayment of moneys held by Trustee.... 65 SECTION 13.05. Reinstatement.......................... 65 ARTICLE FOURTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS. SECTION 14.01. Incorporators, stockholders, officers and directors of Company exempt from individual liability............ 66
-xiii- 15
Page ---- ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS. SECTION 15.01. Successors and assigns of Company bound by Indenture......................... 66 SECTION 15.02. Acts of board, committee or officer of successor corporation valid....... 66 SECTION 15.03. Surrender of powers by Company......... 66 SECTION 15.04. Service of required notices or demands. 67 SECTION 15.05. Notice to holders of Senior Debt Securities...................... 67 SECTION 15.06. Indenture and Senior Debt Securities to be construed in accordance with the laws of the State of Texas........... 67 SECTION 15.07. Officers' Certificate and Opinion of Counsel to be furnished upon applications or demands by the Company.............................. 67 Statements to be included in each certificate or opinion with respect to compliance with a condition or covenant............................. 68 SECTION 15.08. Payments due on Sundays and holidays.. 68 SECTION 15.09. Provisions required by Trust Indenture Act of 1939 to control............... 68 SECTION 15.10. Severability........................... 68 SECTION 15.11. Indenture may be executed in counterparts......................... 68 SECTION 15.12. Computation of interest................ 68 SECTION 15.13. Acceptance of trusts by Trustee........ 69 TESTIMONIUM....................................................... 70 SIGNATURES........................................................ 70
-xiv- 16 INDENTURE, dated as of ______________, 199_, between CENTEX CORPORATION, a corporation duly organized and existing under the laws of the State of Nevada (hereinafter sometimes referred to as the "Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States of America (hereinafter sometimes referred to as the "Trustee"). PRELIMINARY STATEMENT The Company has duly authorized the execution and delivery of this Indenture to provide for one or more series of Senior Debt Securities, issuable as provided in this Indenture. Each series of such Senior Debt Securities will be issued only under a separate Series Supplement to this Indenture duly executed and delivered by the Company and the Trustee and limited to amounts therein prescribed. All covenants and agreements made by the Company herein are for the benefit and security of the holders of Senior Debt Securities. The Company is entering into this Indenture, and the Trustee is accepting the trust created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. ARTICLE ONE. DEFINITIONS. SECTION 1.01. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939 or which are by reference therein defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. Authorized Newspaper: The term "authorized newspaper" shall mean a newspaper printed in the English language and customarily published at least once a day for at least five days in each calendar week, whether or not published on Saturdays, Sundays or legal holidays, and of general circulation in the Borough of Manhattan, The City of New York. Whenever under the provisions of this Indenture two or more publications of a notice or other communication are required or permitted, such publications may be in the same or different newspapers. -1- 17 Board of Directors: The term "Board of Directors" shall mean the Board of Directors of the Company and duly authorized committees of such Board. Business Day: The term "business day" shall mean any day except a Saturday, a Sunday or a day on which banking institutions are legally authorized to close in The City of New York, New York, or The City of Dallas, Texas. Certificate of a Firm of Independent Public Accountants: The term "Certificate of a Firm of Independent Public Accountants" shall mean a certificate signed by an individual, partnership or corporation engaged in accounting work who may be the accountants regularly employed by the Company. Each such certificate shall include the statements provided for in Section 15.07, if and to the extent required by the provisions thereof. Company: The term "Company" shall mean CENTEX CORPORATION, a Nevada corporation, and, subject to the provisions of Article Twelve, shall also include its successors and assigns. Corporate trust office: The term "corporate trust office" of the Trustee shall mean an office or agency of the Trustee in the City of Dallas, Texas, designated by the Trustee, from time to time, as the Trustee's corporate trust office for purposes of this Indenture, which office at the date of the execution of this Indenture is located at Texas Commerce Bank National Association, 1900 Pacific Avenue, 16th Floor, Dallas, Texas 75201. Event of Default; default: The term "Event of Default" shall mean any event specified in Section 7.01, continued for the period of time, if any, and after the giving of notice, if any, therein designated. Unless the context otherwise requires, the term "default" shall mean any occurrence which is, or with notice or the lapse of time or both would become, an Event of Default; provided that any occurrence which would become an Event of Default pursuant to Section 7.01(c) hereof shall not be deemed a default (but may nonetheless constitute an Event of Default upon notice and lapse of time as provided in Section 7.01(c)) for purposes of the Indenture until the expiration of five days after such occurrence shall first become known, or in the exercise of reasonable care should become known, to an officer of the Company. Notwithstanding the proviso clause of the immediately preceding sentence, for purposes of -2- 18 Section 8.08 hereof, the term "default" shall mean any occurrence which is, or with notice of the lapse of time or both would become, an Event of Default. Holder: The term "holder", "holder of Senior Debt Securities", or other similar term, shall mean any person in whose name a Senior Debt Security shall at the time be registered in the Senior Debt Security Register kept for that purpose. Indenture: The term "Indenture" shall mean this instrument as originally executed, or, if amended or supplemented as herein provided, as so amended or supplemented. Officers' Certificate: The term "Officers' Certificate" shall mean a certificate signed by the Chairman of the Board, the President or any Vice President and by the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary of the Company. Each such certificate shall include the statements provided for in Section 15.07, if and to the extent required by the provisions thereof. Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel who shall be satisfactory to the Trustee and may be counsel to the Company. Each such opinion shall include the statements provided for in Section 15.07, if and to the extent required by the provisions thereof. Responsible Officer: The term "responsible officer" when used with respect to the Trustee shall mean the chairman or the vice-chairman of the board of directors, the chairman of the executive committee of the board of directors, the president, any vice president, any second or assistant vice president, the cashier, any assistant cashier, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any senior trust officer or trust officer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. -3- 19 Senior Debt Security; "outstanding" with reference to Senior Debt Securities: The term "Senior Debt Security" or "Senior Debt Securities" shall mean a Senior Debt Security or Senior Debt Securities, as the case may be, consisting of bonds, debentures, notes and/or other unsecured evidences of indebtedness, authenticated and delivered under this Indenture. The term "outstanding", when used with reference to Senior Debt Securities, shall, subject to the provisions of Section 9.04, mean, as of any particular time, all Senior Debt Securities authenticated and delivered by the Trustee under this Indenture, except: (a) Senior Debt Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Senior Debt Securities for the payment or redemption for which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided that, if such Senior Debt Securities are to be redeemed, notice of such redemption shall have been given as in Article Four provided or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Senior Debt Securities in lieu of or in substitution for which other Senior Debt Securities shall have been authenticated and delivered pursuant to the terms of Section 2.08. Senior Debt Security Register; Senior Debt Security Registrar: The terms "Senior Debt Security Register" and "Senior Debt Security Registrar" shall have the respective meanings specified in Section 2.06. Series: The term "Series" shall mean a separate series of Senior Debt Securities issued pursuant to this Indenture and the related Series Supplement. Series Supplement or Supplement: The term "Series Supplement" or "Supplement" shall mean an indenture supplemental to this Indenture, in substantially the form attached hereto as an exhibit, that authorizes a particular Series. -4- 20 Trust Indenture Act of 1939: The term "Trust Indenture Act of 1939" (except as herein otherwise expressly provided or unless the context otherwise requires) shall mean the Trust Indenture Act of 1939 as in force at the date of this Indenture as originally executed. Trustee: The term "Trustee" shall mean Texas Commerce Bank National Association, and, subject to the provisions of Article Eight, shall also include its successors and assigns. ARTICLE TWO. ISSUE, DESCRIPTION, FORM, EXECUTION, REGISTRATION OF TRANSFER AND EXCHANGE OF SENIOR DEBT SECURITIES. SECTION 2.01. The Senior Debt Securities and the Trustee's certificate of authentication are to be substantially in the forms set forth in this Section 2.01, with such appropriate insertions, omissions, substitutions, amendments, changes and other variations as are required or permitted by this Indenture or any Series Supplement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange on which the Senior Debt Securities may be listed or as may, consistently herewith, be determined by the officers executing such Senior Debt Securities as evidenced by their execution of the Senior Debt Securities. The definitive Senior Debt Securities shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by any Series Supplement or the rules of any securities exchange on which the Senior Debt Securities may be listed, all as determined by the officers executing such Senior Debt Securities, as evidenced by their execution of such Senior Debt Securities. The form of Senior Debt Securities and the Trustee's certificate of authentication are to be substantially in the following forms, respectively: -5- 21 [FORM OF FACE OF SENIOR DEBT SECURITY] No. ____________________ [$]____________________ CENTEX CORPORATION [SENIOR DEBT SECURITY] CENTEX CORPORATION, a corporation duly organized and existing under the laws of the State of Nevada (herein referred to as the "Company"), for value received, hereby promises to pay to ____________________________________________ _ or registered assigns, the principal sum of _____________________ [Currency of Issue and Payment] on __________________ , ____, in such coin or currency of the [Country Whose Currency is Designated] as at the time of payment is legal tender for the payment of public and private debts, and to pay interest on said principal sum at the rate per annum specified in the title of this [Senior Debt Security], with respect to interest accrued from [insert accrual date] to the date of the current interest payment, to the registered holder hereof as of the close of business on the ________ day of the month preceding the month in which an interest payment is due, in like coin or currency, all at any office or agency of the Company to be maintained by the Company pursuant to Section 5.02 of the Indenture, which at all times shall include an office or agency in the City of Dallas, Texas, such interest payments to be made, except as otherwise provided in the Indenture hereinafter referred to, [insert interest frequency] on [insert payment dates], in each year, commencing ______ _____, 199__, until payment of said principal sum has been made or duly provided for; provided, however, that payment of interest may be made at the option of the Company by check mailed on or before such payment date to the address of the person entitled thereto as such address shall appear on the Senior Debt Security Register. This [Senior Debt Security] shall be deemed to be a contract made under the laws of the State of Texas, and for all purposes shall be construed in accordance with the laws of said State. Additional provisions of this [Senior Debt Security] are contained on the reverse hereof and such provisions shall for all purposes have the same effect as though fully set forth at this place. This [Senior Debt Security] shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture. -6- 22 IN WITNESS WHEREOF, CENTEX CORPORATION has caused this instrument to be signed in its corporate name by the facsimile signature of its President or a Vice President and by its Secretary or an Assistant Secretary by his signature or a facsimile thereof, and a facsimile of its corporate seal to be affixed hereunto or imprinted hereon. Dated: CENTEX CORPORATION [Seal] By ________________________________ [Title] ATTEST: __________________________ [Title] TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the [Senior Debt Securities] to which reference is made in the within-mentioned Indenture. TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as Trustee By ________________________________ Authorized Signature -7- 23 [FORM OF REVERSE OF SENIOR DEBT SECURITY] CENTEX CORPORATION This [Senior Debt Security] is one of a duly authorized issue of Senior Debt Securities of the Company issued and to be issued in one or more Series, and this [Senior Debt Security] is one of the Series of Senior Debt Securities designated as its [Senior Debt Securities] (herein referred to as the [Senior Debt Securities]), limited to the aggregate principal amount of _____________________________________________ Million [Currency of Issue and Payment] ([$]_ _________________), all issued or to be issued under and pursuant to an indenture dated as of __________________, 199__ (herein referred to as the "Indenture"), duly executed and delivered by the Company to Texas Commerce Bank National Association (referred to herein as the "Trustee"), to which Indenture and all indentures supplemental thereto (including the Series Supplement dated as of ________, 199_ which authorizes the [Senior Debt Securities]) reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Senior Debt Securities of each particular Series and the terms upon which the Senior Debt Securities of each Series are, and are to be, authenticated and delivered. All terms used in this Senior Debt Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. As provided in the Indenture, the Senior Debt Securities are issuable in Series which may vary as in the Indenture provided or permitted. [The indebtedness evidenced by the [Senior Debt Securities] is, to the extent and in the manner provided in the Indenture and the Series Supplement, senior in right of payment to certain indebtedness of the Company.] In case an Event of Default shall have occurred and be continuing with respect to the [Senior Debt Securities], the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture provides that in certain events such declaration and its consequences may be waived by the holders of a majority in aggregate principal amount of the [Senior Debt Securities] then outstanding. An Event of Default with respect to the Senior Debt Security of any other Series issued under the Indenture, including the failure to make any payment of principal or interest with respect thereto when and as due, will not be an Event of Default with respect to the [Senior Debt Securities]. The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the [Senior Debt Securities] at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions -8- 24 to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the [Senior Debt Securities]; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any [Senior Debt Securities], or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable on the redemption thereof, without the consent of the holder of each [Senior Debt Security] so affected, or (ii) reduce the aforesaid percentage of [Senior Debt Securities], the consent of the holders of which is required for any such supplemental indenture, without the consent of the holders of all [Senior Debt Securities] then outstanding. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the [Senior Debt Securities] at the time outstanding may on behalf of the holders of all the [Senior Debt Securities] waive any past default under the Indenture and its consequences, except a default in the payment of the principal of or premium, if any, or interest on any of the [Senior Debt Securities]. Any such consent or waiver by the holder of this [Senior Debt Security] (unless revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders and owners of this [Senior Debt Security] and of any [Senior Debt Security] issued in exchange or substitution herefor, whether or not any notation of such consent or waiver is made upon this [Senior Debt Security]. No reference herein to the Indenture and no provision of this [Senior Debt Security] or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this [Senior Debt Security] at the place, at the respective times, at the rate and in the currency herein prescribed. The [Senior Debt Securities] are issuable in registered form in denominations of $_____ and any integral multiple of $_____. [As provided in the Indenture, the [Senior Debt Securities] may be redeemed, at the option of the Company, as a whole or from time to time in part (otherwise than through the operation of the Sinking Fund), at any time prior to maturity, upon the notice referred to below, [on terms specified in the Series Supplement]. Notwithstanding the foregoing, no such redemption may be made prior to ___________, 19__, directly or indirectly from or in anticipation of moneys borrowed by the Company at an interest cost which is less than [interest rate of the [Senior Debt Securities] as specified in the Series Supplement].] [The [Senior Debt Securities] are entitled to the benefits of a Sinking Fund, operation of the provisions of which is required to begin on _________________, 19__ as provided in the Series Supplement. The [Senior Debt Securities] are subject to redemption (on notice as set forth below) through the operation of the Sinking -9- 25 Fund at a redemption price equal to the principal amount thereof, together with accrued interest to the date fixed for redemption.] Notice of redemption shall be given by mailing by first-class mail a notice of such redemption not less than 20 nor more than 60 days prior to the date fixed for redemption to the holders of [Senior Debt Securities] to be redeemed to their last addresses as they shall appear upon the Senior Debt Security Register for the [Senior Debt Securities], all as provided in the Indenture. Upon due presentment for registration of transfer of this [Senior Debt Security] at any designated office or agency of the Company to be maintained by the Company pursuant to Section 5.02 of the Indenture, which at all times shall include an office or agency in the City of Dallas, Texas, a new [Senior Debt Security] or [Senior Debt Securities] of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith, and the [Senior Debt Securities] may in like manner be exchanged for one or more new [Senior Debt Securities] of other authorized denominations but of the same aggregate principal amount. The Company, the Trustee, any paying agent and any Senior Debt Security Registrar (as defined in the Indenture) for the [Senior Debt Securities] may deem and treat the registered holder hereof as the absolute owner of this [Senior Debt Security] (whether or not this [Senior Debt Security] shall be overdue and notwithstanding any notation of ownership or other writing hereon made by anyone other than the Company or any such Senior Debt Security Registrar), for the purpose of receiving payment hereof or on account hereof and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any such Senior Debt Security Registrar shall be affected by any notice to the contrary. No recourse shall be had for the payment of the principal of, or premium, if any, or interest on, this [Senior Debt Security], or for any claim based hereon or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. ____________________ SECTION 2.02. The aggregate principal amount of Senior Debt Securities which may be authenticated and delivered under this Indenture is unlimited. -10- 26 The Senior Debt Securities may, at the election of and as authorized by the Board of Directors, be issued in one or more Series, and a particular Series shall be designated as the Board of Directors may determine. Each Senior Debt Security shall bear upon its face the designation so selected for the Series for which it belongs. All Senior Debt Securities of the same Series shall be identical in all respects except for the denominations thereof. Each Series of Senior Debt Securities shall be created by a Series Supplement authorized by the Board of Directors in establishing the terms and provisions of such Series. The several Series may differ as between Series, in respect of any of the following matters: (1) designation of the Series; (2) the maximum aggregate principal amount of the Series; (3) accrual date; (4) interest rate; (5) stated maturity of principal; (6) payment dates; (7) authorized denominations; (8) currency of issue and payment; (9) redemption dates; (10) provisions relating to redemption of the related Series on an optional or mandatory basis by the Company or pursuant to a sinking fund; and (11) any other provisions expressing or referring to the terms and conditions upon which the Senior Debt Securities of that Series are to be issued under this Indenture which are not in conflict with the provisions of this Indenture, or any provisions expressly amending or modifying the terms of this Indenture with respect to the Series of Senior Debt Securities to which such Series Supplement relates. Each Series of Senior Debt Securities shall rank equally in right of payment with other outstanding Series of Senior Debt Securities. In authorizing issuance of any Series, the Board of Directors shall determine and specify all matters in respect of the Senior Debt Securities of such Series set forth in clauses (1) to (11) inclusive and shall also determine and specify the form of Senior Debt Securities of such Series. SECTION 2.03. The Senior Debt Securities shall be executed by the Company and be delivered to the Trustee for authentication, and the Trustee shall thereupon, or from time to time thereafter, authenticate and deliver said Senior Debt Securities to and upon the written order of the Company, signed by its President or a Vice President and by its Treasurer, Assistant Treasurer, Secretary or Assistant Secretary, without any further action by the Company. SECTION 2.04. The Senior Debt Securities shall be issuable as registered Senior Debt Securities without coupons in denominations prescribed by the terms of the Series Supplement creating the particular Series. Each Senior Debt Security shall be dated the date of its authentication, shall bear interest from the applicable date, and shall be payable on the dates, as prescribed by the terms of the Series Supplement creating the particular Series. The person in whose name any Senior Debt Security is registered at the close of business on any record date (as hereinafter defined) with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment -11- 27 date (subject to the provisions of Article Four in the case of any Senior Debt Security or Senior Debt Securities, or portion thereof, redeemed on a date subsequent to the record date and on or prior to such interest payment date), except if and to the extent the Company shall default in the payment of the interest due on such interest payment date, in which case such defaulted interest shall be paid to the persons in whose names outstanding Senior Debt Securities are registered on a subsequent special record date established by notice given by mail by or on behalf of the Company to the holders of Senior Debt Securities not less than 15 days preceding such special record date, which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment. The term "record date" as used with respect to any interest payment date shall mean the day of the calendar month prescribed by the terms of the Series Supplement creating the particular Series preceding the day on which such interest payment date falls or, in the case of defaulted interest, the close of business on any special record date established as hereinabove provided. The principal of, and premium, if any, and interest on, the Senior Debt Securities shall be payable at the office or agency of the Company designated for that purpose in the City of Dallas, Texas, and any other office or agency of the Company designated for that purpose; provided, however, that interest may be payable at the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear on the Senior Debt Security Register. SECTION 2.05. The Senior Debt Securities shall be signed manually or by facsimile signature on behalf of the Company by its President or a Vice President under its corporate seal attested by the manual or facsimile signature of its Secretary or an Assistant Secretary. The seal of the Company may be in the form of a facsimile of the seal of the Company and may be impressed, affixed, imprinted or otherwise reproduced on the Senior Debt Securities. Only such Senior Debt Securities as shall bear thereon a certificate of authentication substantially in the form hereinabove recited, manually executed by the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Senior Debt Security executed by the Company shall be conclusive evidence that the Senior Debt Security so authenticated has been duly authenticated and delivered hereunder. In case any officer of the Company who shall have signed any of the Senior Debt Securities shall cease to be such officer before the Senior Debt Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Senior Debt Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Senior Debt Securities had not ceased to be such officer of the Company; and any Senior Debt Security may be signed on behalf of -12- 28 the Company by such persons as, at the actual date of the execution of such Senior Debt Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not an officer. SECTION 2.06. The Senior Debt Securities may be exchanged for a like aggregate principal amount of Senior Debt Securities of other authorized denominations of a like Series. Senior Debt Securities to be exchanged shall be surrendered at any office or agency to be maintained by the Company in accordance with the provisions of Section 5.02, and the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor the Senior Debt Security or Senior Debt Securities which the holder making the exchange shall be entitled to receive. The Company shall keep or cause to be maintained at said office or agency a register (herein sometimes referred to as the "Senior Debt Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall register Senior Debt Securities and shall register the transfer of Senior Debt Securities as in this Article Two provided. For the purposes of registration, exchange or registration of transfer of Senior Debt Securities, the Trustee is hereby appointed Senior Debt Security Registrar. Upon surrender for registration of transfer of any Senior Debt Security at said office or agency, the Company shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Senior Debt Security or Senior Debt Securities in a like aggregate principal amount and of a like Series. At all reasonable times the Senior Debt Security Register shall be open for inspection by the Trustee. No transfer of any Senior Debt Security shall be valid unless made at said office or agency. All Senior Debt Securities presented or surrendered for registration of transfer, exchange, redemption or payment shall (if so required by the Company or the Trustee) be accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company and the Trustee, duly executed by the registered holder or his attorney duly authorized in writing. No service charge shall be made for any exchange or registration of transfer of Senior Debt Securities, or issue of new Senior Debt Securities in case of partial redemption, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. For the Senior Debt Securities of a Series which has a redemption provision, the Company shall not be required (i) to issue, register the transfer of, or exchange any Senior Debt Security during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of the Senior Debt Securities selected for redemption and ending on the day of such mailing, or (ii) to register the transfer of or exchange any Senior Debt Security so selected for redemption in whole or in -13- 29 part, except the unredeemed portions of Senior Debt Securities being redeemed in part. SECTION 2.07. Pending the preparation of definitive Senior Debt Securities, the Company may execute, and the Trustee shall authenticate and deliver, temporary Senior Debt Securities (printed, lithographed or typewritten), of any denomination, and substantially in the form of the definitive Senior Debt Securities, but with such omissions, insertions and variations as may be appropriate for temporary Senior Debt Securities, all as may be determined by the Company. Temporary Senior Debt Securities may be issued without a recital of any specific redemption prices as prescribed by the terms of the Series Supplement creating the particular Series and may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Senior Debt Security shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Senior Debt Securities. The Company shall execute and furnish definitive Senior Debt Securities of the same Series as soon as practicable, and thereupon any or all temporary Senior Debt Securities of such Series may be surrendered in exchange therefor at the corporate trust office of the Trustee, and the Trustee shall authenticate and deliver in exchange for such temporary Senior Debt Securities a like aggregate principal amount of definitive Senior Debt Securities of the same Series. Until so exchanged, the temporary Senior Debt Securities of such Series shall be entitled to the same benefits under this Indenture as definitive Senior Debt Securities of the same Series authenticated and delivered hereunder. SECTION 2.08. In case any temporary or definitive Senior Debt Security shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and the Trustee shall authenticate and deliver, a new Senior Debt Security of a like Series, in exchange and substitution for the mutilated Senior Debt Security or in lieu of and substitution for the Senior Debt Security destroyed, lost or stolen. In every case, the applicant for a substituted Senior Debt Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Senior Debt Security and of the ownership thereof. The Trustee may authenticate any such substituted Senior Debt Security and deliver the same upon the request or authorization of the Company. Upon the issuance of any substituted Senior Debt Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith, including fees and expenses of the Trustee. In case any Senior Debt Security which has matured or is about to mature or has been called for redemption shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Senior Debt Security of a like Series, pay -14- 30 or authorize the payment of the same (without surrender thereof except in the case of a mutilated Senior Debt Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as may be required by them to save each of them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Senior Debt Security and of the ownership thereof. Every substituted Senior Debt Security issued pursuant to the provisions of this Section 2.08 upon evidence that any Senior Debt Security is destroyed, lost or stolen shall, with respect to such Senior Debt Security, constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Senior Debt Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Senior Debt Securities of the same Series duly issued hereunder. All Senior Debt Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Senior Debt Securities, and shall preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. SECTION 2.09. All Senior Debt Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Senior Debt Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. On request of the Company, the Trustee shall deliver to the Company cancelled Senior Debt Securities held by the Trustee; provided, however, that the Trustee may at any time destroy any cancelled Senior Debt Securities and deliver to the Company a certificate of such destruction. If the Company shall acquire any of the Senior Debt Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Senior Debt Securities unless and until the same are delivered to the Trustee or surrendered to the Trustee for cancellation. SECTION 2.10. Nothing in this Indenture or in the Senior Debt Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and the holders of the Senior Debt Securities of a Series, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all its covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Senior Debt Securities of such Series. -15- 31 ARTICLE THREE. PRIORITY OF SENIOR DEBT SECURITIES. SECTION 3.01. Unless otherwise specified in the related Series Supplement, the Company, for itself, its successors and assigns, confirms and agrees that, notwithstanding any other provisions of the Senior Debt Securities, this Indenture or any other agreement under which the Senior Debt Securities are outstanding, the payment of the principal of, and the premium or prepayment charge, if any, sinking funds and interest on (i) the Company's $100,000,000 aggregate principal amount of 8-3/4% Subordinated Debentures due March 1, 2007, (ii) the Company's $20,000,000 aggregate principal amount of 8.8% Subordinated Debentures due June 30, 2007, (iii) the Company's $100,000,000 aggregate principal amount of 7-3/8% Subordinated Debentures due June 1, 2005, and (iv) any other debt securities issued or to be issued under and pursuant to the Indenture described below in this Section 3.01, are expressly subordinated, to the extent and in the manner set forth in the Indenture dated as of March 12, 1987, as supplemented by the Series Supplement dated as of March 12, 1987, the Series Supplement dated as of June 17, 1987, and the Series Supplement dated as of June 9, 1995, all between the Company and Texas Commerce Bank National Association, to the prior payment in full of the Senior Debt Securities. ARTICLE FOUR. REDEMPTION OF SENIOR DEBT SECURITIES - SINKING FUND. SECTION 4.01. Subject to any contrary provisions set forth in the related Series Supplement, the Company may, at its option, at any time prior to maturity, redeem all, or from time to time any part, of the Senior Debt Securities of a Series, otherwise than through the operation of the Sinking Fund provided for in this Article Four, at the redemption prices and upon the conditions, if any, applicable thereto, as permitted by the related Series Supplement for redemption otherwise than through the operation of the Sinking Fund. The election of the Company to exercise such option shall be evidenced by an Officers' Certificate. Unless otherwise specified in the related Series Supplement, the Company may not, however, redeem any of the Senior Debt Securities of a Series pursuant to such option prior to the time prescribed by the terms of the Series Supplement creating the particular Series, directly or indirectly from or in anticipation of money borrowed having an interest cost to the Company of less than the interest rate applicable to the Senior Debt Securities of such Series. In the event the Company shall optionally redeem any Senior Debt Securities of a Series prior to such time, the Company shall deliver to the Trustee an Officers' Certificate stating that such redemption will comply with this requirement. -16- 32 SECTION 4.02. In case the Company shall desire to exercise such right to redeem all or, as the case may be, any part of the Senior Debt Securities in accordance with the right reserved so to do, it shall so notify the Trustee in writing and it shall give notice of such redemption to holders of the Senior Debt Securities to be redeemed as hereinafter in this Section 4.02 provided. Notice of redemption shall be given to the holders of Senior Debt Securities to be redeemed as a whole or in part by mailing by first-class mail a notice of such redemption not less than 20 nor more than 60 days prior to the date fixed for redemption to their last addresses as they shall appear upon the Senior Debt Security Register, but failure to give such notice by mail to the holders of any Senior Debt Security, or any defect therein, shall not affect the validity of the proceedings for the redemption of any other Senior Debt Security. Each such notice of redemption shall specify the date fixed for redemption and the redemption price at which Senior Debt Securities are to be redeemed, and shall state that payment of the redemption price of the Senior Debt Securities to be redeemed will be made at the offices or agencies to be maintained by the Company in accordance with the provisions of Section 5.02, upon presentation and surrender of such Senior Debt Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue. If less than all the Senior Debt Securities are to be redeemed, the notice of redemption shall specify the Senior Debt Securities to be redeemed as a whole or in part. In case any Senior Debt Security is to be redeemed in part only, the notice which relates to such Senior Debt Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Senior Debt Security, a new Senior Debt Security or Senior Debt Securities of a like Series in principal amount equal to the unredeemed portion thereof will be issued. If less than all the Senior Debt Securities of a Series are to be redeemed, the Company shall give the Trustee at least 45 days' written notice in advance of the date fixed for redemption as to the aggregate principal amount of Senior Debt Securities of such Series to be redeemed, and thereupon the Trustee shall select, by random lot, the particular Senior Debt Securities of such Series to be redeemed in whole or in part and shall thereafter promptly notify the Company in writing of the numbers of the Senior Debt Securities of such Series or portions thereof to be redeemed. The selection of Senior Debt Securities to be redeemed may provide for the selection of portions (equal to $1,000 (unless otherwise provided in the related Series Supplement) or a multiple thereof) of the principal of Senior Debt Securities of a denomination larger than $1,000 (unless otherwise provided in the related Series Supplement). The Senior Debt Securities (or portions thereof) so selected shall be deemed duly designated for redemption for all purposes of this Indenture. For the purposes of such selection, -17- 33 the Company will close the Senior Debt Security Register with respect to such Series for the purposes of exchange and transfer of Senior Debt Securities of such Series, for a period not exceeding 15 days. SECTION 4.03. If the giving of notice of redemption shall have been completed as above provided, the Senior Debt Securities or portions of Senior Debt Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after such date fixed for redemption (unless the Company shall default in the payment of such Senior Debt Securities at the redemption price, together with interest accrued to the date fixed for redemption) interest on the Senior Debt Securities or portions of Senior Debt Securities so called for redemption shall cease to accrue. On presentation and surrender of such Senior Debt Securities at the place stated in said notice, the said Senior Debt Securities shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued to the date fixed for redemption. Upon presentation of any Senior Debt Security which is redeemed in part only, the Company shall execute, and the Trustee shall authenticate and deliver, at the expense of the Company, a new Senior Debt Security or Senior Debt Securities of a like Series in principal amount equal to the unredeemed portion of the Senior Debt Security so presented. Prior to the date fixed for the redemption of any Senior Debt Securities as provided in this Article Four, the Company shall deposit in trust with the Trustee or with any paying agent, or if and to the extent that it shall be acting as its own paying agent, the Company shall set aside, segregate and hold in trust, funds sufficient to redeem the Senior Debt Securities or portions thereof to be redeemed on such date, at the applicable redemption price, together with interest accrued to the date fixed for redemption. SECTION 4.04. As and for a Sinking Fund for the retirement of Senior Debt Securities of a Series, if as set forth in the related Series Supplement the Company so elects to include a Sinking Fund obligation in the terms of the Senior Debt Securities of a particular Series, the Company covenants that on or before the applicable date or dates set forth in the Series Supplement, it will pay to the Trustee a sum in cash sufficient to retire by redemption at the Sinking Fund redemption price the principal amount of the Senior Debt Securities of such Series on the date as prescribed by the terms of the Series Supplement creating the particular Series; provided, however, that in any such year in which such day is not a business day, such payment shall be made to the Trustee on the last business day preceding such day. In any year, the Company may, at its sole option, increase the payment required to be made pursuant to this Section 4.04 for such year by an amount as prescribed by the terms of such Series Supplement; -18- 34 provided that such increase shall be an integral multiple of $1,000 (unless otherwise provided in the related Series Supplement). All cash paid to the Trustee pursuant to the provisions of this Section 4.04 shall be applied in accordance with the provisions of this Article Four. SECTION 4.05. In lieu of making all or any part of any mandatory Sinking Fund payment as required pursuant to Section 4.04 in cash, the Company may (a) deliver to the Trustee for cancellation Senior Debt Securities of such Series theretofore issued and acquired by the Company at any time prior to the first day of the month next preceding the due date of such payment and not theretofore made the basis for the reduction of a Sinking Fund payment, or (b) deliver to the Trustee an Officers' Certificate setting forth the principal amount of any Senior Debt Securities of such Series theretofore redeemed and paid pursuant to the provisions of this Article Four (otherwise than through the operation of the mandatory Sinking Fund), or which have been duly called for redemption (otherwise than through the operation of the mandatory Sinking Fund) and the redemption price of which, together with the accrued interest thereon, shall have been deposited in trust for that purpose, as in this Article Four provided, and in either case not theretofore made the basis of the reduction of a Sinking Fund payment; and in each such case the principal amount of Senior Debt Securities of such Series required by Section 4.04 to be redeemed shall be reduced to the extent of the principal amount of the Senior Debt Securities of such Series so delivered or referred to in such certificate. SECTION 4.06. On or before the applicable date specified in the Series Supplement of each year in which the Company is obligated to make a Sinking Fund payment, the Company shall deliver to the Trustee: (a) An Officer's Certificate stating: (i) the manner in which the Company will fulfill its Sinking Fund obligation under this Article Four for that year; (ii) the amount of cash, if any, which the Company will pay to the Trustee on or before the next succeeding Sinking Fund payment date; (iii) the principal amount of Senior Debt Securities of such Series, if any, which the Company will surrender to the Trustee for cancellation in lieu of the payment of cash, and that such Senior Debt Securities were theretofore issued and acquired by -19- 35 the Company prior to said Sinking Fund payment date and have not theretofore been made the basis for the reduction of a Sinking Fund payment; and (iv) the principal amount of any Senior Debt Securities of such Series set forth in a certificate of the character described in clause (b) of Section 4.05, if any such certificate is to be concurrently delivered to the Trustee; (b) The Senior Debt Securities, if any, referred to in Section 4.06(a)(iii); and (c) The certificate, if any, referred to in Section 4.06(a)(iv). SECTION 4.07. On or before the applicable date specified in the Series Supplement or, if such day is not a business day, on the last business day preceding such date of each year in which the Company is obligated to make a Sinking Fund payment, the Company shall pay to the Trustee the amount of cash, if any, payable on or before such Sinking Fund payment date, after giving credit for the principal amount of any Senior Debt Securities delivered pursuant to clause (a) of Section 4.05 or referred to in any certificate delivered pursuant to clause (b) of Section 4.05, in respect of such Sinking Fund payment date. SECTION 4.08. In the event that the amount of cash specified in the certificate given pursuant to Section 4.06, plus the amount, if any, of cash then held pursuant to Section 4.10, is in excess of one percent of the required sinking fund payment, the Trustee shall, as soon as practicable after the receipt of such certificate, take the action herein specified to call for redemption, at the Sinking Fund redemption price, on the next succeeding Sinking Fund payment date, an amount of Senior Debt Securities of such Series sufficient to exhaust such funds as nearly as may be. SECTION 4.09. The Senior Debt Securities to be redeemed from time to time as provided in Section 4.04 or Section 4.08 shall be selected by the Trustee for redemption in the manner provided in Section 4.02 and notice thereof shall be given by the Trustee to the Company, and the Company hereby irrevocably authorizes the Trustee, in the name of and at the expense of the Company, to give notice on behalf of the Company of the call of such Senior Debt Securities, all in the manner and with the effect in this Article Four specified, except that, in addition to the matters required to be included in such notice by Section 4.02, such notice shall also state that the Senior Debt Securities therein designated for redemption are to be redeemed through operation of the Sinking Fund. Such Senior Debt Securities shall be redeemed and paid in accordance with such notice in the manner and with the effect provided in Sections 4.02 and 4.03. -20- 36 Senior Debt Securities redeemed through operation of the Sinking Fund are to be redeemed at the redemption price prescribed by the terms of the Series Supplement creating the particular Series for redemption through operation of the Sinking Fund, such price being sometimes referred to herein as the Sinking Fund redemption price. SECTION 4.10. In the event that at the time of the receipt of the Officers' Certificate required by Section 4.06 the sum of the amount of cash required to be paid to the Trustee pursuant to Section 4.07 and the amount of cash then in the hands of the Trustee in the Sinking Fund and not required for payment of Senior Debt Securities previously called for redemption or purchased through operation of the Sinking Fund, is one percent of the amount of the required Sinking Fund payment or less, such moneys shall not, unless requested by the Company, in said Officers' Certificate, be applied to the redemption of Senior Debt Securities, but shall be retained by the Trustee in the manner directed by the Company in writing and added to the Sinking Fund payment to be made in cash on the next succeeding Sinking Fund payment date, or, upon request of the Company, shall be applied by the Trustee, to the extent practicable, prior to the next succeeding Sinking Fund payment date to the purchase of Senior Debt Securities of such Series, by public or private purchase in the open market or otherwise, at prices (excluding accrued interest and brokerage commissions) not exceeding the Sinking Fund redemption price. SECTION 4.11. All Senior Debt Securities surrendered to or purchased by the Trustee, pursuant to the provisions of this Article Four, shall be forthwith cancelled by it, and at the written direction of the Company, such Senior Debt Securities shall be disposed of by the Trustee, which shall deliver its certificate of disposition thereof to the Company. SECTION 4.12. The Trustee shall not redeem any Senior Debt Securities of a Series with Sinking Fund moneys or mail any notice of redemption of Senior Debt Securities of a Series during the continuance of any Event of Default with respect to the Senior Debt Securities of such Series, except that where notice of redemption of any Senior Debt Securities shall have been mailed prior to the occurrence of such Event of Default, the Trustee shall redeem such Senior Debt Securities provided funds are deposited with it for such purpose. Except as aforesaid, any moneys in the Sinking Fund at such time, and any moneys thereafter paid into the Sinking Fund, shall during the continuance of an Event of Default be held as security for the payment of all the Senior Debt Securities; provided, however, that in case such Event of Default shall have been waived as permitted by this Indenture or otherwise cured, such moneys shall thereafter be held and applied in accordance with the provisions of this Article Four. -21- 37 ARTICLE FIVE. PARTICULAR COVENANTS OF THE COMPANY. SECTION 5.01. The Company will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest on each of the Senior Debt Securities at the place, at the respective times and in the manner provided in the Senior Debt Securities. SECTION 5.02. As long as any of the Senior Debt Securities remain outstanding, the Company will maintain in the City of Dallas, Texas, an office or agency where the Senior Debt Securities may be presented for registration of transfer and exchange as in this Indenture provided, and where the Senior Debt Securities may be presented for payment, and where notices or demands to or upon the Company in respect of the Senior Debt Securities or of this Indenture may be served. Such an office or agency may also be maintained by the Company, at its option, in other locations. Until otherwise designated by the Company in a written notice to the Trustee, such office or agency for purposes of registration of transfer and exchange and presentation for payment shall be the corporate trust office of the Trustee. In case the Company shall fail to maintain such office or agency or shall fail to give such notice of the location or of any change in the location thereof, notices or demands may be served at the corporate trust offices of the Trustee. SECTION 5.03. In order to prevent any accumulation of claims for interest after maturity thereof, the Company will not directly or indirectly extend or consent to the extension of the time for the payment of any claim for interest on any of the Senior Debt Securities of a Series and will not directly or indirectly be a party to or approve any such arrangement by the purchase or funding of said claims for interest or in any other manner. No claim for interest, the time of payment of which shall have been so extended or which shall have been so purchased or funded, shall be entitled, in case of an Event of Default with respect to the Senior Debt Securities of such Series hereunder, to the benefit of this Indenture except after the prior payment in full of the principal of all the Senior Debt Securities of such Series and premiums, if any, and of all claims for interest not so extended, purchased or funded; provided, however, that this Section 5.03 shall not apply in any case where an extension shall be made pursuant to a plan proposed by the Company to the holders of all the Senior Debt Securities of such Series then outstanding. SECTION 5.04. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so that there shall at all times be a Trustee hereunder. SECTION 5.05. (a) The Trustee is appointed the initial paying agent. If the Company shall appoint a paying agent other than the Trustee, it will cause such paying agent to execute and deliver to -22- 38 the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 5.05: (1) that it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, and interest on the Senior Debt Securities of a Series (whether such sums have been paid to it by the Company or by any other obligor on the Senior Debt Securities) in trust for the benefit of the holders of the Senior Debt Securities of such Series, (2) that it will give the Trustee written notice of any default by the Company (or by any other obligor on the Senior Debt Securities of any Series) in making any payment of the principal of or premium, if any, or interest on the Senior Debt Securities of a Series when the same shall be due and payable, and (3) that it will, at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent. (b) If the Company shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, or interest on the Senior Debt Securities of a Series, set aside, segregate and hold in trust for the benefit of the holders of the Senior Debt Securities of such Series a sum sufficient to pay such principal and premium, if any, or interest so becoming due. The Company will promptly notify the Trustee in writing of any failure by it to take such action or the failure by any other obligor on the Senior Debt Securities of such Series to make any payment of the principal of or premium, if any, or interest on the Senior Debt Securities of such Series when the same shall be due and payable. (c) Anything in this Section 5.05 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder, as required by this Section 5.05, such sums to be held by the Trustee upon the trusts herein contained. (d) Anything in this Section 5.05 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.05 is subject to the provisions of Section 13.03 and 13.04. SECTION 5.06. On or before the 90th day after the end of the Company's fiscal year beginning with the fiscal year ended March 31, 199_, the Company will file with the Trustee a certificate from its principal executive officer, principal financial officer or principal accounting officer as to his or her -23- 39 knowledge of the Company's compliance with all conditions and covenants under this Indenture. ARTICLE SIX. LISTS OF HOLDERS OF SENIOR DEBT SECURITIES AND REPORTS BY THE COMPANY AND THE TRUSTEE. SECTION 6.01. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee within 60 days after each interest payment date and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require containing all information in the possession or control of the Company, or any of its paying agents, other than the Trustee, as to the names and addresses of the holders of the Senior Debt Securities of any Series obtained since the date as of which the next previous list, if any, was furnished with respect to such Series; but so long as the Trustee is the Senior Debt Security Registrar no such list shall be required to be furnished. Any such list may be dated as of a date not more than 15 days prior to the time such information is furnished or caused to be furnished, and need not include information received after such date. SECTION 6.02. (a) The Trustee shall preserve, in as current a form as reasonably practicable, all information as to the names and addresses of the holders of Senior Debt Securities (1) contained in the most recent list furnished to it as provided in Section 6.01 and (2) received by it in the capacity of Senior Debt Security Registrar or of paying agent (if so acting) hereunder. The Trustee may destroy any list furnished to it pursuant to Section 6.01 upon receipt of a new list so furnished. (b) In case three or more holders of Senior Debt Securities (hereinafter referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Senior Debt Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other holders of Senior Debt Securities of a particular Series (in which case the applicants must all hold Senior Debt Securities of such Series) or with holders of all Senior Debt Securities with respect to their rights under this Indenture or under the Senior Debt Securities, and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either: (1) afford such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 6.02, or (2) inform such applicants as to the approximate number of holders of Senior Debt Securities of such Series or all -24- 40 Senior Debt Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section 6.02, and as to the approximate cost of mailing to such holders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford such applicants access to such information the Trustee shall, upon the written request of such applicants, mail to each holder of such Series or all Senior Debt Securities, as the case may be, whose name and address appears in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 6.02, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Securities and Exchange Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the holders of Senior Debt Securities of such Series or all Senior Debt Securities, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If said Commission, after opportunity for a hearing upon the objections specified in the written statements so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, said Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all holders of Senior Debt Securities of such Series or all Senior Debt Securities, as the case may be, with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Each and every holder of the Senior Debt Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any paying agent nor any Senior Debt Security Registrar should be held accountable by reason of the disclosure of any such information as to the names and addresses of the holders of Senior Debt Securities in accordance with the provisions of subsection (b) of this Section 6.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b) or for taking any action in good faith under said subsection (b). SECTION 6.03. (a) The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to -25- 41 file the same with the Securities and Exchange Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as said Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with said Commission pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and said Commission, in accordance with rules and regulations prescribed from time to time by said Commission, such supplementary and periodic information, documents and reports which may be required pursuant to section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. (b) The Company covenants and agrees to file with the Trustee and the Securities and Exchange Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in the Indenture as may be required from time to time by such rules and regulations. (c) The Company covenants and agrees to transmit by mail to the holders of Senior Debt Securities as their names and addresses appear on the Senior Debt Security Register for each Series of Senior Debt Securities, (1) within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 6.03 as may be required by rules and regulations prescribed from time to time by the Securities and Exchange Commission, and (2) within 120 days after the end of each fiscal year of the Company, copies of audited financial statements, on a consolidated basis if applicable, including balance sheets, statements of operations, statements of shareholders' equity and statements of changes in financial position, together with the respective reports of independent certified public accountants relating thereto. SECTION 6.04. (a) Within 60 days after May 15 of each year commencing with the year 199_, so long as any Senior Debt Securities of a particular Series are outstanding hereunder, the Trustee shall transmit to the holders of each such Series as hereinafter in this Section 6.04 provided, a brief report dated as of such May 15, with respect to any of the following events which may have occurred within the previous twelve months (but if no such event has occurred within such period, no report needs to be transmitted): (1) any change to its eligibility under Section 8.09, and its qualifications under Section 8.08; -26- 42 (2) the creation of or any material change to a relationship specified in paragraphs (1) through (10) of Section 8.08(c); (3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Senior Debt Securities of such Series, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than one-half of one percent of the principal amount of the Senior Debt Securities of such Series outstanding on the date of such report; (4) the amount, interest rate and maturity date of all other indebtedness owing by the Company (or by any other obligor on the Senior Debt Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in any manner described in paragraphs (2), (3), (4) or (6) of subsection (b) of Section 8.13; (5) any change to the property and funds, if any, physically in the possession of the Trustee as such on the date of such report; (6) any change to any release, or release and substitution, of property subject to the lien of this Indenture (and consideration therefor, if any) not previously reported; (7) any additional issue of Senior Debt Securities not previously reported; and (8) any action taken by the Trustee in the performance of its duties under this Indenture which it has not previously reported and which in its opinion materially affects the Senior Debt Securities except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 7.07. (b) The Trustee shall transmit to the holders of a Series, as hereinafter provided, a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee as such since the date of the last report transmitted pursuant to the provisions of subsection (a) of this Section 6.04 (or if no such report has yet been so transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the Senior -27- 43 Debt Securities of such Series, on property or funds held or collected by it as Trustee, and which it has not previously reported pursuant to this subsection (b), except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10 percent or less of the principal amount of Senior Debt Securities of such Series outstanding at such time, such report to be transmitted within 90 days after such time. (c) Reports pursuant to this Section 6.04 shall be transmitted by mail to all holders of Senior Debt Securities of a Series, as the names and addresses of such holders appear upon the Senior Debt Security Register. (d) A copy of each such report shall, at the time of such transmission to holders, be filed by the Trustee with each stock exchange upon which the Senior Debt Securities are listed and also with the Securities and Exchange Commission. The Company agrees to notify the Trustee when and as the Senior Debt Securities of any Series become listed on any stock exchange. ARTICLE SEVEN. REMEDIES OF THE TRUSTEE AND HOLDERS OF SENIOR DEBT SECURITIES IN EVENT OF DEFAULT. SECTION 7.01. In case one or more of the following Events of Default with respect to the Senior Debt Securities of a Series shall have occurred and be continuing, that is to say: (a) default in the payment of any installment of interest upon any of the Senior Debt Securities of such Series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of or premium, if any, on any of the Senior Debt Securities of such Series or of any Sinking Fund payment as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise; or (c) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Senior Debt Securities or in this Indenture contained for a period of 60 days after the date on which written notice (such written notice to state it is a "Notice of Default" hereunder) of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the holders of at least 25 per cent in principal amount of the Senior Debt Securities of such Series at the time outstanding; or -28- 44 (d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or corporate action shall be taken by the Company in furtherance of any such action; then, and in each and every such case, unless the principal of all the Senior Debt Securities of such Series shall have already become due and payable, either the Trustee or the holders of not less than 25 per cent in aggregate principal amount of the Senior Debt Securities of such Series then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by holders of Senior Debt Securities), may, and at the request of the holders of not less than 25 per cent in aggregate principal amount of the Senior Debt Securities of such Series then outstanding hereunder, the Trustee by notice in writing to the Company shall, declare the principal of all the Senior Debt Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the said Senior Debt Securities of such Series contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at anytime after the principal of the Senior Debt Securities of such Series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Senior Debt Securities of that Series and the principal of and premium, if any, on any and all such Senior Debt Securities which shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Senior Debt Securities of that Series to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents and counsel, and all other -29- 45 expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or bad faith, and any and all defaults under the Indenture, other than the nonpayment of the principal of Senior Debt Securities of that Series which shall have become due by acceleration, shall have been remedied -- then, and in every such case, the holders of a majority in aggregate principal amount of the Senior Debt Securities of such Series then outstanding, by written notice to the Company and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then, and in every such case, the Company, the Trustee and the holders of the Senior Debt Securities of such Series shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee and the holders of the Senior Debt Securities of such Series shall continue as though no such proceedings had been taken. The Trustee shall not be charged with notice of any default or Event of Default under subsections (c), (d) or (e) of this Section 7.01 unless the Trustee shall have actually received (at its corporate trust office) written notice thereof from the Company or any holder of Senior Debt Securities describing said default or Event of Default. SECTION 7.02. The Company covenants that (1) in case default shall be made in the payment of any installment of interest on any of the Senior Debt Securities of a Series, as and when the same shall become due and payable, and such default, shall have continued for a period of 60 days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Senior Debt Securities of a Series or of any Sinking Fund payment when the same shall have become payable, whether upon maturity of the Senior Debt Securities of such Series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Senior Debt Securities of such Series, the whole amount that then shall have become due and payable on all such Senior Debt Securities of such Series for principal and premium, if any, or interest, or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate borne by the Senior Debt Securities of such Series; and, in addition thereto, such further amount as shall be sufficient to cover reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. -30- 46 In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon the Senior Debt Securities and collect in the manner provided by law out of the property of the Company or other obligor upon the Senior Debt Securities wherever situated the moneys adjudged or decreed to be payable. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor upon the Senior Debt Securities under the Federal bankruptcy laws, as now or hereafter constituted, or any other Federal or State bankruptcy, insolvency or similar laws relative to the Company or to such other obligor, its creditors or its property, or in case a receiver or trustee shall have been appointed for its property, or in case of any other judicial proceedings relative to the Company or other obligor upon the Senior Debt Securities, its creditors or its property, the Trustee irrespective of whether the principal of any Senior Debt Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 7.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and premium, if any, and interest owing and unpaid in respect of the Senior Debt Securities, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the holders of Senior Debt Securities allowed in any judicial proceedings relative to the Company or other obligor upon the Senior Debt Securities, its creditors or its property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the holders of Senior Debt Securities and of the Trustee on their behalf; and any receiver, assignee, liquidator, sequestrator or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Senior Debt Securities to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the holders of Senior Debt Securities, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 8.06. All rights of action and of asserting claims under this Indenture, or under any of the Senior Debt Securities, may be enforced by the Trustee without the possession of any of the Senior Debt Securities, or the production thereof in any trial or other -31- 47 proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the holders of the Senior Debt Securities. In case of a default of which the Trustee has or is deemed to have notice hereunder occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specified enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the trustee by this Indenture or by law. SECTION 7.03. Any moneys collected by the Trustee pursuant to Section 7.02 shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or premium, if any, or interest, upon presentation of the several Senior Debt Securities, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid: FIRST: To the payment of costs and expenses of collection, and reasonable compensation, expenses, disbursements and advances of the Trustee, it agents and counsel, and any other amounts due to the Trustee under this Indenture, including without limitation amounts due under Section 8.06; SECOND: In case the principal of the Senior Debt Securities of a Series shall not have become due, to the payment of interest on the Senior Debt Securities, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by the Senior Debt Securities of such Series, such payments to be made ratably to the persons entitled thereto, without discrimination or preference; THIRD: In case the principal of the Senior Debt Securities of a Series shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Senior Debt Securities of such Series for principal, and premium, if any, and interest, with interest on the overdue principal, and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate borne by the Senior Debt Securities of such Series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid on the Senior Debt Securities of such Series, then -32- 48 to the payment of such principal, and premium, if any, and interest, without preference or priority of principal, and premium, if any, over interest, or of interest over principal, and premium, if any, or of any installment of interest over any other installment of interest, or of any Senior Debt Security of such Series over any other Senior Debt Security of such Series, ratably to the aggregate of such principal, and premium, if any, and accrued and unpaid interest. SECTION 7.04. No holder of any Senior Debt Security of a Series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such holder previously shall have given to the Trustee written notice of default in respect of such Series and of the continuance thereof, as hereinbefore provided, and unless also the holders of not less than 25 percent in aggregate principal amount of the Senior Debt Securities of such Series then outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 7.06; it being understood and intended, and being expressly covenanted by the taker and holder of every Senior Debt Security of such Series with every other such taker and holder and the Trustee, that no one or more holders of Senior Debt Securities of a Series shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such Senior Debt Securities of such Series, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Senior Debt Securities of such Series. For the protection and enforcement of the provisions of this Section 7.04, each and every holder of such Series and the Trustee shall be entitled to such relief as can be given either at law or in equity. Notwithstanding any other provisions in this Indenture, however, the right of any holder of any Senior Debt Security to receive payment of the principal of, and premium, if any, and interest on, such Senior Debt Security, on or after the respective due dates expressed in such Senior Debt Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder. -33- 49 SECTION 7.05. All powers and remedies given by this Article Seven to the Trustee or to the holders of Senior Debt Securities shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or such holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any holder of any of the Senior Debt Securities to exercise any right or power accruing upon any default occurring and continuing as aforesaid, shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 7.04, every power and remedy given by this Article Seven or by law to the Trustee or to the holders of Senior Debt Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by such holders. SECTION 7.06. The holders of a majority in aggregate principal amount of the Senior Debt Securities of a Series at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding of any remedy available to the Trustee with respect to the Senior Debt Securities of such Series, or exercising any trust or power conferred on the Trustee with respect to such Series; provided, however, that the Trustee shall be entitled to receive indemnity or security reasonably satisfactory to it prior to following such direction or taking such action, and providing further that subject to the provisions of Section 8.01 the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel shall determine that the action so directed may not lawfully be taken, or if the Trustee in good faith shall, by a responsible officer or officers, determine that the action so directed would be unduly prejudicial to the holders of the Senior Debt Securities of such Series not taking part in such direction or would involve the Trustee in personal liability. Prior to the declaration of the maturity of the Senior Debt Securities of any Series as provided in Section 7.01, the holders of a majority in aggregate principal amount of the Senior Debt Securities of a Series at the time outstanding may on behalf of the holders of all of the Senior Debt Securities of such Series waive any past default hereunder and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Senior Debt Securities of such Series or in respect of a covenant or provision hereof which under Section 11.02 cannot be modified or amended without the consent of the holder of each Senior Debt Security so affected. In the case of any such waiver, the Company, the Trustee and the holders of the Senior Debt Securities of such Series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 7.07. The Trustee shall, within 90 days after the occurrence of a default with respect to a Series of which the Trustee has or is deemed to have knowledge hereunder, give to the -34- 50 holders of such Series, in the manner and to the extent provided in subsection (c) of Section 6.04, notice of all such defaults, unless such default shall have been cured before the giving of such notice (the term "default" or "defaults" for the purposes of this Section 7.07 being hereby defined to be any event or events, as the case may be, specified in clause (a), (b), (c), (d) and (e) of Section 7.01, not including periods of grace, if any, provided for therein and irrespective of the giving of the written notice specified in clause (c) of Section 7.01); provided, however, that, except in the case of default in the payment of the principal of, or premium, if any, or interest on, any of the Senior Debt Securities, or in the payment of any Sinking Fund installment, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or responsible officers, of the Trustee in good faith determines that the withholding of such notice is in the interests of the holders of such Series. SECTION 7.08. All parties to this Indenture agree, and each holder of any Senior Debt Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 7.08 shall not apply to any suit instituted by the Trustee, to any suit instituted by any holder of Senior Debt Securities, or group of holders of Senior Debt Securities, holding in the aggregate more than 10 percent in aggregate principal amount of the Senior Debt Securities of a Series then outstanding, or to any suit instituted by any holder of Senior Debt Securities for the enforcement of the payment of the principal of, or premium, if any, or interest on, any Senior Debt Security, on or after the due date expressed in such Senior Debt Security. ARTICLE EIGHT. CONCERNING THE TRUSTEE. SECTION 8.01. The Trustee, prior to the occurrence of an Event of Default with respect to the Senior Debt Securities of a particular Series and after the curing or waiver of all Events of Default with respect to the Senior Debt Securities of a particular Series which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Senior Debt Securities of any Series has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and -35- 51 powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that: (a) prior to the occurrence of an Event of Default with respect to the Senior Debt Securities of a particular Series and after the curing of all Events of Default with respect to the Senior Debt Securities of any Series which may have occurred: (1) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Trustee shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in aggregate principal amount of the Senior Debt Securities of a Series at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture relating to such Series. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds is not reasonably assured to it or at the option of the -36- 52 Trustee indemnity reasonably satisfactory to the Trustee against such risk or liability has not been provided. Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 8.01. SECTION 8.02. Except as otherwise provided in Section 8.01: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, direction, approval, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by the Chairman of the Board, President or any Vice President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors of the Company may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the holders of Senior Debt Securities, pursuant to the provisions of this Indenture, unless such holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; (e) The Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, discretion, approval, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or -37- 53 investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney (other than an employee of the Trustee) appointed by it with due care hereunder. SECTION 8.03. The recitals contained herein and in the Senior Debt Securities (except in the Trustee's certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Senior Debt Securities. The Trustee shall not be accountable for the use or application by the Company of any of the Senior Debt Securities or of the proceeds thereof. SECTION 8.04. The Trustee or any paying agent or Senior Debt Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Senior Debt Securities with the same rights it would have if it were not Trustee, paying agent or Senior Debt Security Registrar. SECTION 8.05. Subject to the provisions of Section 13.04, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon. So long as no Event of Default with respect to the Senior Debt Securities of any Series shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Company, signed by its President or any Vice President or its Treasurer or an Assistant Treasurer. SECTION 8.06. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. -38- 54 If any property other than cash shall at any time be subject to a lien in favor of the holders of Senior Debt Securities, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon, provided that the Trustee shall be under no affirmative duty to make such advances. The Company also covenants to indemnify the Trustee, its directors, officers, employees or agents for, and to hold each of them harmless against, any loss, liability or expense incurred without negligence, intentional wrongdoing or bad faith on the part of the Trustee, its directors, officers, employees or agents, arising out of or in connection with the acceptance or administration of this trust, the offering, issuance or sale of the Debt Securities or any or all other transactions contemplated hereunder, including the reasonable cost and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 8.06 to compensate the Trustee, its directors, officers, employees or agents and to pay or reimburse the Trustee, its directors, officers, employees or agents for expenses, disbursements and advances shall constitute additional indebtedness hereunder. The Trustee shall give the Company prompt notice of any action commenced against it in respect of which indemnity may be sought hereunder. The Trustee's willful failure to so notify the Company, after the receipt by the Trustee at its Corporate Trust Office of written notification of such action, shall relieve the Company from any liability under this Indenture with respect to such action. In any such action the Company, by written notice to the Trustee, may assume the defense thereof with counsel of the Trustee's choosing, who shall be subject to the approval of the Company; and such approval shall not be unreasonably withheld by the Company. In no event shall the Company be required to indemnify or reimburse the Trustee hereunder in respect of any claim settled or compromised without its consent. In no event shall the Company be liable for the fees and expenses, which in all cases must be reasonable under the circumstances, of more than one counsel in connection with any one action. Such additional indebtedness shall be secured by a lien prior to that of the Senior Debt Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Senior Debt Securities of any Series. SECTION 8.07. Except as otherwise provided in Section 8.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee and such Officers' Certificate, in the absence of negligence or bad faith on the part of the Trustee, -39- 55 shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 8.08. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 8.08, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in Section 8.10, such resignation to become effective upon the appointment of a successor trustee and such successor's acceptance of such appointment, and the Company shall take prompt steps to have a successor appointed in the manner provided in Section 8.10. (b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10 days after the expiration of such 90 day period, transmit notice of such failure to the holders of Senior Debt Securities in the manner and to the extent provided in subsection (c) of Section 6.04. (c) For the purposes of this Section 8.08 the Trustee shall be deemed to have a conflicting interest if a default or an Event of Default exists with respect to the Senior Debt Securities of any Series and if: (1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding or is trustee for more than one outstanding "series of securities" (as hereafter defined) issued under a single indenture (including, without limitation, this Indenture) of the Company unless such other indenture is a collateral trust indenture under which the only collateral consists of Senior Debt Securities issued under this Indenture, provided that there shall be excluded from the operation of this paragraph any other Series of Senior Debt Securities issued under this Indenture, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding if (i) this Indenture and such other indenture or indentures (and all series of securities issuable thereunder) are wholly unsecured and rank equally, and such other indenture or indentures (and such series) are specifically described in this Indenture or are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture (or such series) and the provisions of such other indenture or indentures (or such series) which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of -40- 56 investors to disqualify the Trustee from acting as such under this Indenture or such other indenture or indentures, or (ii) the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture and such other indenture, or under more than one outstanding series under a single indenture, is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures or with respect to such series; (2) the Trustee or any of its directors or executive officers is an underwriter for the Company; (3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company; (4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the Company, but may not be at the same time an executive officer of both the Trustee and the Company; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the Company; and (C) the Trustee may be designated by the Company, or by any underwriter for the Company, to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise; (5) 10 percent or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director, partner, or executive officer thereof, or 20 percent or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or 10 percent or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons; (6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this subsection (c) defined), (A) 5 percent or more of the voting securities, or 10 percent or more of any -41- 57 other class of security, of the Company, not including the Senior Debt Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) 10 percent or more of any class of security of an underwriter for the Company; (7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this subsection (c) defined), 5 per cent or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10 percent or more of the voting securities of, or controls directly or indirectly, or is under direct or indirect common control with, the Company; (8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this subsection (c) defined), 10 per cent or more of any class of security of any person who, to the knowledge of the Trustee, owns 50 per cent or more of the voting securities of the Company; or (9) the Trustee owns on the date of default upon the Senior Debt Securities of any Series or any anniversary of such default while such default upon the Senior Debt Securities of such Series remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 25 per cent or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator, or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities do not exceed 25 percent of such voting securities or 25 per cent of any such class of security. Promptly after the dates of any such default upon the Senior Debt Securities of any Series and annually in each succeeding year that the Senior Debt Securities of such Series remain in default, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company fails to make payment in full of principal of or interest on any of the Senior Debt Securities when and as the same become due and payable, and such failure continues for 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30 day period, and after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such -42- 58 failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). (10) Except under the circumstances described in paragraphs (1), (3), (4), (5) or (6) of Section 8.13(b), the Trustee shall be or shall become a creditor of the Company. For purposes of paragraph (1) of this subsection (c) and Section 7.06, the term "series of securities" or "series" means a series, class or group of securities issuable under an indenture pursuant to whose terms holders of one such series may vote to direct the trustee, or otherwise take action pursuant to a vote of such holders, separately from holders of another series; provided, that "series of securities" or "series" shall not include any series of securities issuable under an indenture if all such series rank equally and are wholly unsecured. The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c). For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (c) only, (A) the terms "security" and "securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness; (B) an obligation shall be deemed to be "in default" when a default in payment of principal shall have continued for 30 days or more and shall not have been cured; and (C) the Trustee shall not be deemed to be the owner or holder of (i) any security which it holds as collateral security (as trustee or otherwise) for an obligation which is not in default as defined in clause (B) above, or (ii) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (iii) any security which it holds as agent for collection, or as custodian, escrow agent, or depositary, or in any similar representative capacity. Except as above provided, the word "security" or "securities" as used in this Indenture shall mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a "security", or any certificate of interest or participation in, temporary or -43- 59 interim certificate for, receipt for, guarantee of or warrant or right to subscribe to or purchase, any of the foregoing. (d) For the purposes of this Section 8.08: (1) The term "underwriter" when used with reference to the Company shall mean every person who, within one year prior to the time as of which the determination is made, has purchased from the Company with a view to, or has offered for sale or has sold for the Company in connection with, the distribution of any security of the Company outstanding at such time, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission. (2) The term "director" shall mean any director of a corporation or any individual performing similar functions with respect to any organization whether incorporated or unincorporated. (3) The term "person" shall mean an individual, a corporation, a partnership, an association, a joint-stock company, a trust, an unincorporated organization, or a government or political subdivision thereof. As used in this paragraph, the term "trust" shall include only a trust where the interest or interests of the beneficiary or beneficiaries are evidenced by a security. (4) The term "voting security" shall mean any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person. (5) The term "Company" shall mean any obligor upon the Senior Debt Securities. (6) The term "executive officer" shall mean the president, every vice president, every trust officer, the cashier, the secretary and the treasurer of a corporation, and any individual customarily performing similar functions with respect to any organization whether incorporated or unincorporated, but shall not include the chairman of the board of directors. -44- 60 (e) The percentage of voting securities and other securities specified in this Section 8.08 shall be calculated in accordance with the following provisions: (A) A specified percentage of the voting securities of the Trustee, the Company or any other person referred to in this Section 8.08 (each of whom is referred to as a "person" in this paragraph) means such amount of the outstanding voting securities of such person as entitles the holder or holders thereof to cast such specified percentage of the aggregate votes which the holders of all the outstanding voting securities of such person are entitled to cast in the direction or management of the affairs of such person. (B) A specified percentage of a class of securities of a person means such percentage of the aggregate amount of securities of the class outstanding. (C) The term "amount", when used in regard to securities, means the principal amount if relating to evidences of indebtedness, the number of shares if relating to capital shares, and the number of units if relating to any other kind of security. (D) The term "outstanding" means issued and not held by or for the account of the issuer. The following securities shall not be deemed outstanding within the meaning of this definition: (i) Securities of an issuer held in a sinking fund relating to another class of securities of the issuer of the same class. (ii) Securities of an issuer held in a sinking fund relating to another class of securities of the issuer, if the obligation evidenced by such other class of securities is not in default as to principal or interest or otherwise. (iii) Securities pledged by the issuer thereof as security for an obligation of the issuer not in default as to principal or interest or otherwise. (iv) Securities held in escrow if placed in escrow by the issuer thereof; provided, however, that any voting securities of an issuer shall be deemed outstanding if any person other than the issuer is entitled to exercise the voting rights thereof. (E) A security shall be deemed to be of the same class as another if both securities confer upon the holder or holders thereof substantially the same rights and privileges;provided, however, that, in the case of secured evidences of -45- 61 indebtedness, all of which are issued under a single indenture, differences in the interest rates or maturity dates of various series thereof shall not be deemed sufficient to constitute such series different classes; and provided, further, that, in the case of unsecured evidences of indebtedness, differences in the interest rates or maturity dates thereof shall not be deemed sufficient to constitute them securities of different classes, whether or not they are issued under a single indenture. SECTION 8.09. The Trustee hereunder shall at all times be a corporation organized and doing business under the laws of the United States or of any State or of the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $10,000,000, subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any person directly or indirectly controlling, controlled by or under common control with the Company shall serve as Trustee under this Indenture or any Series Supplement. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 8.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 8.10. SECTION 8.10. (a) The Trustee may at any time resign with respect to one or more or all Series of Senior Debt Securities by giving written notice by first-class mail of such resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument in duplicate executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any holder who has been a bona fide holder of a Senior Debt Security or Senior Debt Securities of the applicable Series for at least six months may, subject to the provisions of Section 8.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. Any resignation of the Trustee shall be subject to the provisions of subparagraph (d) hereof. (b) In case at any time any of the following shall occur: -46- 62 (1) the Trustee shall fail to comply with the provisions of subsection (a) of Section 8.08 with respect to any Series of Senior Debt Securities after written request therefor by the Company or by any holder who has been a bona fide holder of a Senior Debt Security or Senior Debt Securities for at least six months, or (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.09 and shall fail to resign after written request therefor by the Company or by any such holder, or (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 7.08, any holder who has been a bona fide holder of a Senior Debt Security or Senior Debt Securities of such Series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to the applicable Series and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee with respect to the applicable Series and appoint a successor trustee. (c) The Company may also remove the Trustee, pursuant to the procedures set forth in Section 8.10(b) hereof, if the Company has given 60 days written notice to the Trustee and the holders of the applicable Series of Senior Debt Securities and has delivered to the Trustee and such holders of Senior Debt Securities an Officers' Certificate stating: (1) the reasons for such removal; (2) that such removal will in no way be detrimental to the interests of such holders of Senior Debt Securities; and (3) the identity of the successor trustee to be appointed; provided that (i) such successor trustee shall have a combined capital and surplus of at least $20,000,000, (ii) the rating assigned to the debt obligations of such successor trustee by the rating agency or agencies rating any such debt obligations shall be -47- 63 no lower than the rating assigned, at the time of appointment of the Trustee being replaced, to the debt obligations of the Trustee being replaced, and (iii) such successor trustee shall be independent and shall be eligible to act as Trustee pursuant to Sections 8.08 and 8.09 hereof; and, provided further that if after receiving such notice, the holders of a majority in principal amount of the outstanding Senior Debt Securities of the applicable Series shall notify the Trustee that they are opposed to such removal, the Company shall not be entitled to remove the Trustee pursuant to this Section 8.10(c) and the Company shall not be entitled to exercise its rights pursuant to this Section 8.10(c) for six months after such notice by the holders of Senior Debt Securities. (d) The holders of a majority in aggregate principal amount of the Senior Debt Securities of any Series at the time outstanding may at any time remove the Trustee with respect to the Senior Debt Securities of such Series and appoint a successor trustee of the applicable Series of Senior Debt Securities by delivery to the Trustee so removed, to the successor trustee so appointed and to the Company, the evidence provided for in Section 9.01 of the action taken by the holders of the Senior Debt Securities. (e) Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 8.11. (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor trustee by mailing written notice of such event by first-class mail, postage prepaid, to the holders of the applicable Series of Senior Debt Securities as their names and addresses appear in the Senior Debt Security Register. Each notice shall include the name of the successor trustee and the address of its principal corporate trust office. If the Company fails to mail such notice within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company. SECTION 8.11. Any successor trustee appointed as provided in Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable Series shall become effective and such successor trustee without any further act, deed or conveyance shall become vested with all the rights, powers, duties and obligations of its predecessor, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the Trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 8.06, execute and deliver an instrument transferring to such -48- 64 successor trustee all the right and powers of the Trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 8.06. If a successor trustee is appointed with respect to the Senior Debt Securities of one or more (but not all) Series, the Company, the predecessor trustee and each successor trustee with respect to the Senior Debt Securities of any applicable Series shall execute and deliver an agreement supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Senior Debt Securities of any Series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental agreement shall constitute such trustees co-trustees of the same trust and that each such trustee shall be a trustee of a trust or trusts under separate Indentures. No successor trustee shall accept appointment as provided in this Section 8.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09. SECTION 8.12. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger or conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Senior Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Senior Debt Securities so authenticated; and in case at that time any of the Senior Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Senior Debt Securities either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such -49- 65 certificate shall have the full force which it is anywhere in the Senior Debt Securities or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Senior Debt Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. SECTION 8.13. (a) Subject to the provisions of subsection (b) of this Section 8.13, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company on the Senior Debt Securities within three months prior to a default, as defined in subsection (c) of this Section 8.13, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the holders of the Senior Debt Securities and the holders of other indenture securities (as defined in subsection (c) of this Section 8.13): (1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected after the beginning of such three months' period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this subsection, or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and (2) all property received by the Trustee in respect of any claim as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such three months' period, or an amount equal to the proceeds of any such property, if disposed of,subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds. Nothing herein contained, however, shall affect the right of the Trustee (A) to retain for its own account (i) payments made on account of any such claim by any person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third person, and (iii) distributions made in cash, securities or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or any other Federal or State bankruptcy, insolvency or similar law; (B) to realize, for its own account, upon any property held by it as security for any such claim, if such property -50- 66 was so held prior to the beginning of such three months' period; (C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such three months' period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default as defined in subsection (c) of this Section 8.13 would occur within three months; or (D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as provided in such paragraph (B) or (C), as the case may be, to the extent of the fair value of such property. For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such three months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any preexisting claim of the Trustee as such creditor, such claim shall have the same status as such preexisting claim. If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned between the Trustee, the holders of Senior Debt Securities and the holders of other indenture securities in such manner that the Trustee, the holders of Senior Debt Securities and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or any other Federal or State bankruptcy, insolvency or similar law, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee, the holders of Senior Debt Securities and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or any other Federal or State bankruptcy, insolvency or similar law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this -51- 67 paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or any other Federal or State bankruptcy, insolvency or similar law, whether such distribution is made in cash, securities, or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which said bankruptcy, receivership, or proceeding for reorganization is pending shall have jurisdiction (i) to apportion between the Trustee, the holders of Senior Debt Securities and the holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and the proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee, the holders of Senior Debt Securities and the holders of other indenture securities with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula. Any Trustee which has resigned or been removed after the beginning of such three months' period shall be subject to the provisions of this subsection (a) as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three months' period, it shall be subject to the provisions of this subsection (a) if and only if the following conditions exist: (i) the receipt of property or reduction of claim which would have given rise to the obligation to account, if such Trustee had continued as trustee, occurred after the beginning of such three months' period; and (ii) such receipt of property or reduction of claim occurred within three months after such resignation or removal. (b) There shall be excluded from the operation of subsection (a) of this Section 8.13 a creditor relationship arising from: (1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee; (2) advances authorized by a receivership or bankruptcy court of competent jurisdiction, or by this Indenture, for the purpose of preserving any property which shall at any time be -52- 68 subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereof, if notice of such advance and of the circumstances surrounding the making thereof is given to the holders of Senior Debt Securities at the time and in the manner provided in this Indenture; (3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity; (4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction as defined in subsection (c) of this Section 8.13; (5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; or (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper as defined in subsection (c) of this Section 8.13. (c) As used in this Section 8.13: (1) The term "default" shall mean any failure to make payment in full of the principal of or interest on any of the Senior Debt Securities or upon the other indenture securities when and as such principal or interest becomes due and payable. (2) The term "other indenture securities" shall mean securities upon which the Company is an obligor (as defined in the Trust Indenture Act of 1939) outstanding under any other indenture (A) under which the Trustee is also trustee, (B) which contains provisions substantially similar to the provisions of subsection (a) of this Section 8.13, and (C) under which a default exists at the time of the apportionment of the funds and property held in said special account. (3) The term "cash transaction" shall mean any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand. (4) The term "self-liquidating paper" shall mean any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacture, shipment, storage or sale of -53- 69 goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising form the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation. (5) The term "Company" shall mean any obligor upon the Senior Debt Securities. ARTICLE NINE. CONCERNING THE HOLDERS OF SENIOR DEBT SECURITIES. SECTION 9.01. Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the Senior Debt Securities of a Series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by holders in person or by agent or proxy appointed in writing, or (b) by the record of the holders of the Senior Debt Securities of such Series voting in favor thereof at any meeting of holders duly called and held in accordance with the provisions of Article Ten, or (c) by a combination of such instrument or instruments and any such record of such a meeting of holders. SECTION 9.02. Subject to the provisions of Section 9.01 and Section 9.05, proof of the execution of any instrument by a holder or his agent or proxy and proof of the holding by any person of any of the Senior Debt Securities of a Series shall be sufficient if made in the following manner: The fact and date of the execution by any such person of any instrument may be proved by the certificate of any notary public or other officer of any jurisdiction within the United States of America authorized to take acknowledgments of deeds to be recorded in such jurisdiction, that the person executing such instrument acknowledged to him the execution thereof, by an affidavit of a witness to such execution sworn to before any such notary or other such officer or by any other method or in any other manner as shall be acceptable to the Trustee. If such execution is by an officer of a corporation or association or a member of a partnership on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The ownership of Senior Debt Securities of a Series shall be proved by the Senior Debt Security Register or by a certificate of the Senior Debt Security Registrar thereof. -54- 70 The Trustee shall not be bound to recognize any person as a holder unless and until his title to the Senior Debt Securities held by him is proved in the manner in this Article Nine provided. The Trustee may require such additional proof of any matter referred to in this Section 9.02 as it shall deem necessary. The record of any holders' meeting shall be proved in the manner provided in Section 10.06. SECTION 9.03. The Company, the Trustee, any paying agent and any Senior Debt Security Registrar may deem and treat the person in whose name any Senior Debt Security shall be registered in the Senior Debt Security Register as the absolute owner of such Senior Debt Security (whether or not such Senior Debt Security shall be overdue and notwithstanding any notation of ownership or other writing thereon made by anyone other than the Company or any Senior Debt Security Registrar) for the purpose of receiving payment thereof or on account thereof and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Senior Debt Security Registrar shall be affected by any notice to the contrary. All such payments so made to any such registered holder for the time being, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Senior Debt Security. SECTION 9.04. In determining whether the holders of the requisite aggregate principal amount of Senior Debt Securities of a Series have concurred in any direction, consent or waiver under this Indenture, Senior Debt Securities of such Series which are owned by the Company, or any other obligor on the Senior Debt Securities of such Series or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, or any other obligor on the Senior Debt Securities of such Series shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Senior Debt Securities of such Series which the Trustee knows are so owned shall be so disregarded. Senior Debt Securities of such Series so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 9.04, if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Senior Debt Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, or any such other obligor. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Senior Debt Securities of such Series, if any, known by the Company to be owned or held by or for the account of any of the above described persons; and, subject to the provisions of Section 8.01, the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the -55- 71 facts therein set forth and of the fact that all Senior Debt Securities of such Series not listed therein are outstanding for the purposes of any such determination. SECTION 9.05. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by the holders of the percentage in aggregate principal amount of the Senior Debt Securities of a Series specified in this Indenture in connection with such action, any holder of a Senior Debt Security of such Series the serial number of which is shown by the evidence to be included in the Senior Debt Securities of such Series the holders of which have consented to such action may, by filing written notice with the Trustee at its office and upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Senior Debt Security. Except as aforesaid, any such action taken by the holder of any Senior Debt Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Senior Debt Security, and of any Senior Debt Security issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon such Senior Debt Security. Any action taken by the holders of the percentage in aggregate principal amount of the Senior Debt Securities of a Series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Senior Debt Securities of such Series. ARTICLE TEN. MEETINGS OF HOLDERS OF SENIOR DEBT SECURITIES. SECTION 10.01. A meeting of holders of Senior Debt Securities of any or all Series may be called at any time and from time to time pursuant to the provisions of this Article Ten for any of the following purposes: (1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by holders pursuant to any of the provisions of Article Seven; (2) to remove the Trustee with respect to one or more or all Series and appoint a successor trustee pursuant to the provisions of Article Eight; (3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 11.02; or (4) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Senior Debt Securities of any or all -56- 72 Series under any other provision of this Indenture or under applicable law. SECTION 10.02. The Trustee may at any time call a meeting of holders of Senior Debt Securities to take any action specified in Section 10.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the holders of any or all Series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to such holders of Senior Debt Securities at their addresses as shown by the Senior Debt Security Register not less than 20 nor more than 60 days prior to the date fixed for the meeting. SECTION 10.03. In case at any time the Company, pursuant to a resolution of its Board of Directors, shall have requested the Trustee to call a meeting of holders of any or all Series, or the holders of at least 10 per cent in aggregate principal amount of the Senior Debt Securities of the Series then outstanding with respect to which a meeting is proposed to be called shall have requested the Trustee to call a meeting of the holders of the applicable Series, to take any action authorized in Section 10.01 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or the holders of Senior Debt Securities of the applicable Series in the amount above specified may determine the time and the place for such meeting and may call such meeting by mailing notice thereof as provided in Section 10.02. SECTION 10.04. To be entitled to vote at any meeting of holders of Senior Debt Securities of any or all Series a person shall (a) be a holder of one or more Senior Debt Securities with respect to which such meeting was called, or (b) be a person appointed by an instrument in writing as proxy by a holder of one or more Senior Debt Securities with respect to which such meeting was called. The only persons who shall be entitled to be present or to speak at any meeting of holders of Senior Debt Securities of any or all Series shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. SECTION 10.05. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of holders of Senior Debt Securities, in regard to proof of the holding of Senior Debt Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of -57- 73 Senior Debt Securities shall be proved in the manner specified in Section 9.02 and the appointment of any proxy shall be proved in the manner specified in said Section 9.02 or by having the signature of the person executing the proxy witnessed or guaranteed by any bank, banker or trust company. The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by holders as provided in Section 10.03, in which case the Company or the holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the holders of a majority in aggregate principal amount of the Senior Debt Securities represented at the meeting and entitled to vote. Subject to the provisions of Section 9.04, at any meeting each holder or proxy shall be entitled to one vote for each $1,000 (unless otherwise provided in the related Series Supplement) principal amount of Senior Debt Securities of the Series entitled to vote held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Senior Debt Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Senior Debt Securities of the Series entitled to vote held by him or instruments in writing as aforesaid duly designating him as the person to vote on behalf of other holders. Any meeting of holders duly called pursuant to the provisions of Section 10.02 or 10.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice. At any meeting of holders of Senior Debt Securities of any or all Series, the presence of persons holding or representing Senior Debt Securities of the applicable Series in an aggregate principal amount sufficient to take action upon the business for the transaction of which such meeting was called shall be necessary to constitute a quorum; but, if less than a quorum be present, the persons holding or representing a majority of the Senior Debt Securities of the applicable Series represented at the meeting may adjourn such meeting with the same effect as though a quorum had been present. SECTION 10.06. The vote upon any resolution submitted to any meeting of holders shall be by written ballots on which shall be subscribed the signatures of the holders or proxies and the serial number or numbers of the Senior Debt Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of holders shall be prepared by the secretary of the meeting and there shall be attached to said -58- 74 record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 10.02. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. ARTICLE ELEVEN. SUPPLEMENTAL INDENTURES. SECTION 11.01. The Company, when authorized by resolutions of its Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes: (a) to evidence the succession of another corporation to the Company or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company pursuant to Article Twelve; (b) to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as its Board of Directors and the Trustee shall consider to be for the protection of the holders of any Series of Senior Debt Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions a default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit the right of the holders of a majority in aggregate principal amount of the Senior Debt Securities of a Series to waive such default; (c) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions -59- 75 arising under this Indenture which shall not be inconsistent with the provisions of this Indenture, provided that such action shall not adversely affect the interests of the holders of the Senior Debt Securities; and (d) to set forth the terms of any Series that has not theretofore been authorized by a Series Supplement. The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section 11.01 may be executed by the Company and the Trustee without the consent of the holders of any of the Senior Debt Securities at the time outstanding, notwithstanding any of the provisions of Section 11.02. SECTION 11.02. With the consent (evidenced as provided in Section 9.01) of the holders of not less than a majority in aggregate principal amount of the Senior Debt Securities of each Series to be affected at the time outstanding, the Company, when authorized by resolutions of its Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the holders of the Senior Debt Securities of such Series; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any Senior Debt Securities, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, without the consent of the holder of each Senior Debt Security so affected, (ii) reduce the aforesaid percentage of Senior Debt Securities of any Series, the consent of the holders of which is required for any such supplemental indenture, without the consent of the holders of all Senior Debt Securities of such Series then outstanding, or (iii) modify any of the provisions of this Section or Section 7.06, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the holder of each Senior Debt Security affected thereby. Upon the request of the Company, accompanied by a copy of resolutions of its Board of Directors certified by the Secretary or an Assistant Secretary of the Company authorizing the execution of -60- 76 any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the holders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. It shall not be necessary for the consent of the holders under this Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 11.02, the Company shall mail to the holders to which such supplemental indenture relates a notice, setting forth in general terms the substance of such supplemental indenture. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. SECTION 11.03. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Eleven, this Indenture shall be and be deemed to be modified and amended in accordance therewith with respect to each Series of Senior Debt Securities affected thereby or all Senior Debt Securities, as the case may be, and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Senior Debt Securities of each Series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. The Trustee, subject to the provisions of Section 8.01, may receive an Opinion of Counsel as conclusive evidence that any such supplemental indenture complies with the provisions of this Article Eleven and that all conditions precedent thereto have been met. SECTION 11.04. Senior Debt Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Eleven or after any action taken at a meeting of holders of Senior Debt Securities pursuant to Article Ten, may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture or as to any such action. New Senior Debt Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture or reflecting such action may be prepared by the Company, and such Senior Debt Securities may be -61- 77 authenticated by the Trustee and delivered in exchange for the Senior Debt Securities then outstanding. ARTICLE TWELVE. CONSOLIDATION, MERGER, SALE OR CONVEYANCE. SECTION 12.01. (a) Nothing contained in this Indenture or in any of the Senior Debt Securities shall prevent any consolidation or merger of the Company with or into any other corporation or corporations or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of the property of the Company as an entirety or substantially as an entirety to any other corporation authorized to acquire and operate the same; provided, however, and the Company hereby covenants and agrees, that any such consolidation, merger, sale or conveyance shall be upon the condition that (a) immediately after such consolidation, merger, sale or conveyance, the corporation (whether the Company or such other corporation) formed by or surviving any such consolidation or merger, or to which such sale or conveyance shall have been made, shall not be in default in the performance or observance of any of the terms, covenants and conditions of this Indenture to be kept or performed by the Company; (b) the corporation (if other than the Company) formed by or surviving any such consolidation or merger, or to which such sale or conveyance shall have been made, shall be a corporation organized under the laws of the United States of America or any state thereof; and (c) the due and punctual payment of the principal of (and premium, if any) and interest on all of the Senior Debt Securities, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed, or observed by the Company, shall be expressly assumed by the corporation formed by such consolidation, or into which the Company shall have been merged, or by the corporation which shall have acquired such property, by supplemental indenture, satisfactory in form to the Trustee, executed and delivered to the Trustee by the corporation formed by such consolidation, or into which the Company shall have been merged, or by the corporation which shall have acquired such property. SECTION 12.02. In case of any such consolidation, merger, sale or conveyance in accordance with Section 12.01, such successor corporation shall succeed to and be substituted for the Company with the same effect as if it had been named herein as a party, and the Company (including any intervening successor to either hereunder) shall be relieved of any further obligation under this Indenture and the Senior Debt Securities; provided, however, that in the case of a sale or conveyance of the property of the Company (including any such intervening successor), in connection with which there is no plan providing for the complete liquidation of the Company (including any such intervening successor), the Company (including any such intervening successor) shall continue to be liable on its obligations under this Indenture and the Senior Debt -62- 78 Securities to the extent, but only to the extent, of liability to pay the principal of and premium, if any, and interest on the Senior Debt Securities at the time, places and rate, and in the coin or currency, prescribed in this Indenture and the Senior Debt Securities. Any such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Senior Debt Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of any such successor corporation, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Senior Debt Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Senior Debt Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Senior Debt Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Senior Debt Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Senior Debt Securities had been issued at the date of the execution hereof. In case of any such consolidation, merger, sale or conveyance, such changes in phraseology and form (but not in substance) may be made in the Senior Debt Securities thereafter to be issued as may be appropriate. SECTION 12.03. The Trustee, subject to the provisions of Sections 8.01 and 8.02, may receive an Officer's Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale or conveyance complies with the provisions of this Article Twelve and that all conditions precedent herein provided relating to such transaction have been complied with. ARTICLE THIRTEEN. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS. SECTION 13.01. The Company may terminate its obligation under the Senior Debt Securities of a Series and this Indenture with respect to such Senior Debt Securities, except those obligations referred to in the immediately succeeding paragraph, if at any time (a) the Company shall have delivered to the Trustee for cancellation all Senior Debt Securities of any Series theretofore authenticated and delivered (other than any Senior Debt Securities which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) and the Company shall have paid or caused to be paid all sums payable by it hereunder, or (b) if the Company has irrevocably deposited or caused to be deposited with the Trustee under the terms of an irrevocable trust agreement in form and substance satisfactory to -63- 79 the Trustee, as trust funds in trust solely for the benefit of the holders of the Senior Debt Securities of such Series for that purpose, money or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which guarantee or obligation the full faith and credit of the United States is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, as verified in a Certificate of a Firm of Independent Public Accountants, without consideration of any reinvestment of such interest, to pay principal of and interest or sinking funds on the outstanding Senior Debt Securities of such Series to maturity or redemption as the case may be, provided that the Trustee or any paying agent shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of said principal and interest and said sinking fund with respect to the Senior Debt Securities of such Series. The Company may make an irrevocable deposit pursuant to this Section 13.01 only if at such time the Company shall have delivered to the Trustee and any such paying agent an Officers' Certificate and an Opinion of Counsel, each stating that all conditions herein precedent to the satisfaction and discharge of this Indenture have been complied with and the Opinion of Counsel further states that the making of such deposit (i) does not contravene or violate any provision of any indenture, mortgage, loan agreement or other similar agreement known to such counsel to which the Company is a party or by which it or any of its property is bound, and (ii) does not require registration by the deposit referred to above under the Investment Company Act of 1940, as amended. Notwithstanding the foregoing paragraph, the Company's obligations in Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 shall survive until the Senior Debt Securities of such Series are no longer outstanding. Thereafter, the Company's obligations in Section 8.06, 13.04 and 13.05 shall survive. After any such irrevocable deposit, the Trustee upon request shall (i) acknowledge in writing the discharge of the Company's obligations under the Senior Debt Securities of such Series and this Indenture except for those surviving obligations specified above, (ii) execute, deliver and file termination statements, releases and other instruments of satisfaction, release and discharge with respect to such released security interest and (iii) assign, transfer and deliver to the Company all the Trustee's rights and interest in and to that portion of the trust estate so released. SECTION 13.02. Subject to the provisions of Section 13.04, all moneys or U.S. Government Obligations deposited with the Trustee pursuant to Section 13.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular Senior Debt Securities of the -64- 80 applicable Series, for the payment or redemption of which such moneys or U.S. Government Obligations have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest and premium, if any, and Sinking Fund payments. SECTION 13.03. In connection with the satisfaction and discharge of this Indenture with respect to the Senior Debt Securities of any Series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such Series of Senior Debt Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys. SECTION 13.04. Any moneys deposited with the Trustee or any paying agent for the payment of the principal of and premium, if any, or interest on Senior Debt Securities of any Series and not applied but remaining unclaimed by the holders of Senior Debt Securities of such Series for three years after the date upon which such payment shall have become due, shall be held uninvested and without liability for interest and shall be repaid to the Company by the Trustee or by such paying agent on demand; and the holder of any of the Senior Debt Securities of the applicable Series entitled to receive such payment shall thereafter look only to the Company for the payment thereof and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease; provided, however, that the Trustee or such paying agent, before being required to make any such repayment, may at the expense of the Company cause to be published once a week for two successive weeks (in each case on any day of the week) in an authorized newspaper a notice that said moneys have not been so applied and that after a date named therein any unclaimed balance of said moneys then remaining will be returned to the Company. SECTION 13.05. If the Trustee is unable to apply any money or U.S. Government Obligations in accordance with Section 13.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture and the Senior Debt Securities of any Series affected thereby shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.01, until such time as the Trustee is permitted to apply all such money or U.S. Government Obligations in accordance with Section 13.01; provided, however, that if the Company has made any payment of interest on or principal of any Senior Debt Securities of such Series because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the holders of such Senior Debt Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee. -65- 81 ARTICLE FOURTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS. SECTION 14.01. No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Senior Debt Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or of any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in the Senior Debt Securities of any Series or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in the Senior Debt Securities of any Series or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Senior Debt Securities. ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS. SECTION 15.01. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not. SECTION 15.02. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at that time be the successor of the Company. SECTION 15.03. The Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers or rights reserved to the Company and thereupon such power or right so surrendered shall terminate both as to the Company and as to any successor corporation. -66- 82 SECTION 15.04. Any notice or demand which by any provisions of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Senior Debt Securities to or on the Company shall be delivered by hand or sent by first-class mail, postage prepaid, addressed (until another address is filed by the Company with the Trustee), as follows: Centex Corporation, 3333 Lee Parkway, Dallas, Texas 75219, Attention: Corporate Secretary. Any notice, direction, request or demand by any holder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made at any corporate trust office of the Trustee. SECTION 15.05. Where this Indenture provides for notice to holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid, to each holder affected by such event, at his address as it appears on the Senior Debt Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular holder shall affect the sufficiency of such notice with respect to other holders, and any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given. When this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to holders of Senior Debt Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. SECTION 15.06. This Indenture, each indenture supplemental thereto and each Senior Debt Security shall be deemed to be a contract made under the laws of the State of Texas, and for all purposes shall be construed in accordance with the laws of said State, provided that the rights, duties, immunities and standard of care of the Trustee shall be governed by and construed in accordance with the laws of the United States of America. SECTION 15.07. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent -67- 83 (including any covenant compliance with which constitutes a condition precedent) provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such document is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. SECTION 15.08. In any case where the date of maturity of interest on or principal of the Senior Debt Securities or the date fixed for redemption of any Senior Debt Security shall not be a business day then payment of interest or principal and premium, if any, to the holders need not be made on such date, but may be made on the next succeeding business day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date. SECTION 15.09. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such required provision shall control. SECTION 15.10. In case any provision in this Indenture or in the Senior Debt Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 15.11. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 15.12. Unless specified otherwise in the Series Supplement, interest on the Senior Debt Securities shall be -68- 84 computed on the basis of a 360-day year consisting of twelve 30-day months. SECTION 15.13. Texas Commerce Bank National Association hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth. IN WITNESS WHEREOF, CENTEX CORPORATION has caused this Indenture to be signed by its President or one of its Vice Presidents, and its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or an Assistant Secretary, and TEXAS COMMERCE BANK NATIONAL ASSOCIATION has caused this Indenture to be signed by one of its duly authorized trust officers and its corporate seal to be affixed hereunto, and the same to be duly attested, all as of the day and year first above written. CENTEX CORPORATION By: ------------------------------------ Michael S. Albright, Vice President ATTEST: - --------------------------------------- David A. Greenblatt, Associate General Counsel and Assistant Secretary TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as Trustee By: ------------------------------------ Title: -------------------------------- ATTEST: - --------------------------------------- [Name and title] -69- 85 STATE OF TEXAS Section Section COUNTY OF DALLAS Section BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared Michael S. Albright and David A. Greenblatt, known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CENTEX CORPORATION, a Nevada corporation, and that they executed the same as the act of said corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of ____________, 199__. ------------------------------------------- Notary Public in and for the State of Texas My commission expires: ------------------------------------------- (Type or print name) - --------------------------- STATE OF TEXAS Section Section COUNTY OF DALLAS Section BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared [Name of Officers], known to me to be the persons and officers whose names are subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association, and that they executed the same as the act of said banking association for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of ____________, 199__. ------------------------------------------- Notary Public in and for the State of Texas My commission expires: ------------------------------------------- (Type or print name) - ---------------------- -70- EX-4.4 4 FORM OF INDENTURE SUPPLEMENT 1 EXHIBIT 4.4 [Form of July 21, 1995] [Form of Supplemental Indenture. A Supplemental Indenture entered into between the Company and the Trustee with respect to each Series of Senior Debt Securities issued pursuant to the Indenture, in definitive, executed form, will be filed by the Company with the Commission as an Exhibit to a current Report on Form 8-K shortly after the closing date for the issuance of each such Series of Senior Debt Securities.] CENTEX CORPORATION Issuer and TEXAS COMMERCE BANK NATIONAL ASSOCIATION Trustee SERIES _____ SUPPLEMENT Dated as of __________, 199___ to INDENTURE Dated as of ___________, 199___ $_______________________ [SENIOR DEBT SECURITIES] 2 SERIES ___________ SUPPLEMENT, dated as of _____________, 199___, between CENTEX CORPORATION, a Nevada corporation (together with its successors and assigns as provided in the Indenture referred to below, the "Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association (together with its successors in trust thereunder as provided in the Indenture referred to below, the "Trustee"), as trustee under an Indenture dated as of __________________, 199___ (the "Indenture"). PRELIMINARY STATEMENT Section 2.02 of the Indenture provides, among other things, that the Company may, when authorized by its Board of Directors, and the Trustee may at any time and from time to time enter into an indenture supplemental to the Indenture for the purpose of authorizing a Series of Senior Debt Securities and to specify certain terms of such Series of Senior Debt Securities. The Board of Directors of the Company has duly authorized the creation of a Series of Senior Debt Securities with an aggregate principal amount of $___________________ to be known as the Company's [Senior Debt Securities], (the "[Senior Debt Securities]") , and the Company and the Trustee are executing and delivering this Series _____ Supplement in order to provide for the [Senior Debt Securities]. SECTION 1. Designation. The [Senior Debt Securities] shall be designated as the Company's [Senior Debt Securities]. SECTION 2. Date of [Senior Debt Securities]. The [Senior Debt Securities] which are authenticated and delivered by the Trustee to or upon the order of the Company on the Closing Date for the [Senior Debt Securities] shall be dated __________________, _____. All other [Senior Debt Securities] which are authenticated after the Closing Date for any other purpose under the Indenture shall be dated the date of their authentication. For the purposes of this Section 2, "Closing Date" shall mean the date on which the [Senior Debt Securities] are first executed, authenticated and delivered. SECTION 3. Aggregate Principal Amount. The aggregate principal amount of [Senior Debt Securities] that may be authenticated and delivered under the Indenture and this Series _____ Supplement is limited to $_____________________. SECTION 4. Interest Rate. The [Senior Debt Securities] shall bear interest at the rate of ______% per annum. -2- 3 SECTION 5. Interest Payment Dates. The interest payment dates for the [Senior Debt Securities] are [_________________], commencing on ___________________, 199___. SECTION 6. Record Date. The record date with respect to an interest payment date shall be the _____ day of the calendar month preceding the month in which such interest payment date falls, or in the case of defaulted interest, the close of business on any special record date. SECTION 7. Denominations of [Senior Debt Securities]. The [Senior Debt Securities] are issuable in denominations of $_______________ and any integral thereof. SECTION 8. Currency of Issuance and Payments. The [Senior Debt Securities] shall be issued in the currency of ________________ and shall be paid in such currency. [SECTION 9. Redemption Date and Price. The [Senior Debt Securities] may be redeemed [in full] [in whole or in part] at the Company's option at _____% of the principal amount thereof, plus accrued interest, if redeemed prior to ________________, 199___, and at the following prices (expressed as percentages of the principal amount) if redeemed during the twelve month period beginning ________ of the years indicated below, together in each case with interest accrued to the redemption date: Redemption Year Price ---- ---------- 19___ $_________________ 19___ $_________________ Beginning ________________, 19__, the Company may redeem the [Senior Debt Securities] at 100% of the principal amount thereof together with interest accrued to the redemption date.] [SECTION 10. Sinking Fund. As and for a Sinking Fund for the retirement of the [Senior Debt Securities], the Company covenants that on or before ___________________, 19___, and annually on or before _____________ of each year thereafter to and including ___________________________, ________, it will pay to the Trustee a sum in cash sufficient to retire by redemption at a Sinking Fund redemption price set forth below, on the next succeeding ______________, $_________________ principal amount of the [Senior - 3 - 4 Debt Securities]; provided, however, that in any such year in which _________________ is not a business day, such payment shall be made to the Trustee on the last business day preceding such ___________________________. In any year, the Company may, at its sole option, increase the payment required to be made pursuant to this Section 10 for such year by an amount not to exceed $_______________________; provided that such increase shall be an integral multiple of $____________. The Sinking Fund redemption price will be equal to the principal amount of the [Senior Debt Securities] to be redeemed pursuant to this Section 10, together with accrued interest to the date fixed for redemption.] SECTION 11. Form of [Senior Debt Securities]. The [Senior Debt Securities] shall be in the form attached hereto as Exhibit A. SECTION 12. Maturity Date. The [Senior Debt Securities] will mature and be payable in accordance with their terms on __________________, 19___. SECTION 13. Book-Entry Matters. Pursuant to Section 2.02 of the Indenture, the following provisions shall apply to the [Senior Debt Securities], notwithstanding anything to the contrary in the Indenture: (a) The [Senior Debt Securities] will be issued in fully registered form only. However, except as provided in paragraphs (d), (e) and (f) of this Section 13, the registered owner of all of the [Senior Debt Securities] initially shall be The Depository Trust Company ("DTC") or its nominee, and such [Senior Debt Securities] initially shall be registered in the name of DTC or its nominee. Payment of the principal of or interest on [Senior Debt Securities] registered in the name of DTC or its nominee shall be made in the manner and at the address(es) specified in the Letter of Representations, dated ____________, 199__, from the Company and the Trustee to DTC, a copy of which is attached hereto as Exhibit B. DTC (and any successor securities depository) and its (or their) participating institutions (collectively "Participants") shall maintain a book- entry registration and transfer system with respect to ownership of beneficial interests in the [Senior Debt Securities] (the "Book-Entry System"). (b) The [Senior Debt Securities] shall be initially issued in the form of a separate, single, authenticated, fully registered [Senior Debt Security] (the "Global Security") which (i) pursuant to Section 2.01 of the Indenture, need not be in the form of a lithographed or engraved certificate, but may be typewritten or printed on ordinary paper or such paper as the Trustee may reasonably request, (ii) shall represent - 4 - 5 and be denominated in an amount equal to 100% of the aggregate principal amount of the [Senior Debt Securities] issued under this Series _____ Supplement, (iii) shall be executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture, and delivered by the Trustee to DTC or its nominee or an approved custodian for DTC (which may include the Trustee), (iv) shall be registered in the Senior Debt Security Register in the name of Cede & Co., as nominee of DTC, and (v) shall contain the following legend on the face thereof: Unless this [Senior Debt Security] is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Company or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered holder hereof, Cede & Co., has an interest herein. Unless and until it is exchanged in whole or in part for [Senior Debt Securities] in definitive certificated form, the Global Security representing the [Senior Debt Securities] may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor securities depository or a nominee of any such successor securities depository. (c) The Trustee and the Company may treat DTC or its nominee, or any successor securities depository or nominee thereof (collectively, the "Depository"), as the sole and exclusive owner of the [Senior Debt Securities] registered in its name for the purposes of payment of the principal of or interest on the [Senior Debt Securities], giving any notice permitted or required to be given to holders of the [Senior Debt Securities] under the Indenture or this Series _____ Supplement, registering the transfer of the [Senior Debt Securities], obtaining any consent or other action to be taken by holders of the [Senior Debt Securities] and for all other purposes whatsoever, and neither the Trustee nor the Company shall be affected by any notice to the contrary. Neither the Company nor the Trustee shall have any responsibility or obligation to any Participant, any person claiming a beneficial ownership interest in the [Senior Debt Securities] under or through the Depository or any Participant, or any other person which is not shown on the Senior Debt Security Register as being a holder of the [Senior Debt Securities], with respect to (i) the accuracy of any records maintained by - 5 - 6 the Depository or any Participant; (ii) the payment by the Depository to any Participant of any amount in respect of the principal of or interest on the [Senior Debt Securities]; or (iii) the payment by any Participant to any owner of a beneficial ownership interest in the [Senior Debt Securities] in respect of the principal of or interest on the [Senior Debt Securities]. The Trustee shall pay all principal of and interest on the [Senior Debt Securities] only to or upon the order of the registered holder or holders of the [Senior Debt Securities], as shown in the Senior Debt Security Register, and all such payments shall be valid and effective to fully satisfy and discharge the Company's obligations with respect to the principal of and interest on the [Senior Debt Securities] to the extent of the sum or sums so paid. No person other than a holder of the [Senior Debt Securities], as shown in the Senior Debt Security Register, shall receive an authenticated [Senior Debt Security] evidencing the obligation of the Company to make payment of the principal of and interest on the [Senior Debt Securities] pursuant to the Indenture and this Series ____ Supplement. Upon delivery by DTC to the Trustee of written notice to the effect that DTC has determined to substitute a new nominee for Cede & Co., and subject to the provisions of the Indenture and this Series _____ Supplement, the word "Cede & Co.", as used in this Series _____ Supplement, shall refer to each new nominee of DTC. (d) In the event that after the occurrence of an Event of Default that has not been cured or waived, holders of a majority in aggregate principal amount of the beneficial interests in the [Senior Debt Securities], as reflected in the books and records of the Depository, notify the Trustee, through the Depository or any Participant, that the continuation of the Book-Entry System is no longer in the best interests of such holders of beneficial interests in the [Senior Debt Securities], then the Trustee shall notify the Depository and the Company, and the Depository will notify the Participants of the availability through the Depository of definitive certificated [Senior Debt Securities]. In such event, the Company shall execute, and the Trustee, upon receipt of a written order of the Company, signed by its President or a Vice President and by its Treasurer, Assistant Treasurer, Secretary or Assistant Secretary (an "Issuer Order"), for the authentication and delivery of definitive certificated [Senior Debt Securities], will authenticate and deliver [Senior Debt Securities] in definitive certificated form, in any authorized denominations, all pursuant to the provisions of the Indenture, to the person or persons specified to the Trustee in writing by the Depository in the aggregate principal amount of the Global Security and in exchange for such Global Security. (e) If at any time the Depository notifies the Company that it is unwilling or unable to continue as Depository for the [Senior Debt Securities] or if at any time the Depository - 6 - 7 shall no longer be registered as a clearing agency in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depository with respect to the [Senior Debt Securities]. If a successor Depository for the [Senior Debt Securities] is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive certificated [Senior Debt Securities], will authenticate and deliver [Senior Debt Securities] in definitive certificated form, in any authorized denominations, all pursuant to the provisions of the Indenture, to the person or persons specified to the Trustee in writing by the Depository in the aggregate principal amount of the Global Security and in exchange for such Global Security. (f) The Company may at any time and in its sole discretion determine that the [Senior Debt Securities] shall no longer be represented by a Global Security. In such event the Company will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive certificated [Senior Debt Securities], will authenticate and deliver [Senior Debt Securities] in definitive certificated form, in any authorized denominations, all pursuant to the provisions of the Indenture, to the person or persons specified to the Trustee in writing by the Depository in the aggregate principal amount of the Global Security and in exchange for such Global Security. (g) Upon the exchange of a Global Security for [Senior Debt Securities] in definitive certificated form, in authorized denominations, such Global Security shall be cancelled by the Trustee. (h) Whenever the Depository requests the Company and the Trustee to do so, the Trustee and the Company will cooperate with the Depository in taking appropriate action after reasonable notice to (i) make available one or more separate Global Securities evidencing the [Senior Debt Securities] to any Participant having [Senior Debt Securities] credited to its account at the Depository, or (ii) arrange for another Depository to maintain custody of the Global Security or Securities evidencing the [Senior Debt Securities]. (i) In connection with any notice or other communication to be provided to holders of the [Senior Debt Securities] pursuant to the Indenture and this Series _____ Supplement by the Company or the Trustee with respect to any consent or other action to be taken by holders of the [Senior Debt Securities], the Company or the Trustee, as the case may be, shall establish a record date for such consent or other action and give the Depository notice of such record date not less than 15 calendar days in advance of such record date to the - 7 - 8 extent possible. Such notice to the Depository shall be given only so long as a Depository or its nominee is the sole record holder of the [Senior Debt Securities]. SECTION 14. Certain Defined Terms. All terms used in this Series _____ Supplement which are defined in the Indenture, either directly or by reference therein, have the respective meanings assigned to them therein, except to the extent such terms are defined in this Series _____ Supplement or the context clearly requires otherwise. SECTION 15. Counterparts. This Series _____ Supplement may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 16. Governing Law. This Series _____ Supplement and each [Senior Debt Security] issued hereunder shall be deemed to be a contract made under the laws of the State of Texas, and for all purposes shall be construed in accordance with the laws of said State, provided that the rights, duties, immunities and standard of care of the Trustee shall be governed by and construed in accordance with the laws of the United States of America. SECTION 17. Acceptance of Trusts. Texas Commerce Bank National Association hereby accepts the trusts in this Series _____ Supplement declared and provided, upon the terms and conditions herein and in the Indenture set forth. SECTION 18. Ratification of Indenture. As supplemented by this Series _____ Supplement, the Indenture is in all respects ratified and confirmed and the Indenture as so supplemented by this Series _____ Supplement shall be read, taken and construed as one and the same instrument. [Insert additional provisions as necessary] - 8 - 9 IN WITNESS WHEREOF, the Company and the Trustee have caused this Series _____ Supplement to be duly executed by their respective officers thereunto duly authorized and their respective seals duly attested to be hereunto affixed all as of the day and year first above written. CENTEX CORPORATION [SEAL] Company Attest: By: ----------------------------------- Title: -------------------------------- --------------------------------------- Title: --------------------------------- TEXAS COMMERCE BANK NATIONAL ASSOCIATION [SEAL] Trustee Attest: By: ----------------------------------- Title: -------------------------------- --------------------------------------- Title: --------------------------------- - 9 - 10 STATE OF TEXAS Section Section COUNTY OF DALLAS Section BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared _________________, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CENTEX CORPORATION, a Nevada corporation, and that he executed the same as the act of said corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of _______________________, 19_____. ------------------------------------- Notary Public in and for the State of Texas My commission expires: -------------------------------------- [Type or print name] --------------------------------------- STATE OF TEXAS Section Section COUNTY OF DALLAS Section BEFORE ME, the undersigned authority, a Notary Public in and for said state, on this day personally appeared __________________, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association, and that he executed the same as the act of said banking association for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of _______________________, 19___. ------------------------------------- Notary Public in and for the State of Texas My commission expires: ------------------------------------- [Type or print name] --------------------------------------- - 10 - EX-5.1 5 OPINION OF RAYMOND G. SMERGE, ESQ. 1 CENTEX CORPORATION 3333 LEE PARKWAY DALLAS, TEXAS 75219 July 21, 1995 Centex Corporation 3333 Lee Parkway Dallas, Texas 75219 RE: SENIOR AND SUBORDINATED DEBT SECURITIES Gentlemen: I am Vice President, Chief Legal Officer and Secretary of Centex Corporation, a Nevada corporation (the "Company"), and have acted in such capacities in connection with the proposed issuance and sale by the Company of up to $100,000,000 aggregate principal amount of various series of debt securities, which may be senior debt securities or subordinated debt securities (collectively, "Debt Securities"), to certain underwriters to be named later (the "Underwriters"), such sales to be made in accordance with the terms of an Underwriting Agreement (the "Underwriting Agreement") to be entered into by the Company and a representative or representatives of the Underwriters (the "Representative"), in substantially the form filed as an Exhibit to the Registration Statement (as such term is hereinafter defined), and a Pricing Agreement (the "Pricing Agreement") with respect to each series of Debt Securities to be entered into by the Company and the Representative, on behalf of itself and the other Underwriters, if any, named therein, in substantially the form filed as an Exhibit to the Registration Statement. Each series of Debt Securities will be issued under: (i) an Indenture (the "Senior Indenture") to be entered into by and between the Company and Texas Commerce Bank National Association, as trustee (the "Senior Trustee"), relating to the Company's senior debt securities, various series (the "Senior Debt Securities"), a form of which Senior Indenture is filed as an Exhibit to the Registration Statement, or (ii) an Indenture (the "Subordinated Indenture") dated as of March 12, 1987, by and between the Company and Texas Commerce Bank National Association, as trustee (the "Subordinated Trustee"), relating to the Company's subordinated debt securities, various series (the "Subordinated Debt Securities"), which Subordinated Indenture is incorporated by reference as an Exhibit to the Registration Statement, and in either case a Supplemental Indenture (the "Supplemental Indenture") with respect to each series of Senior or Subordinated Debt Securities to be entered into by the Company and the Senior Trustee or the Subordinated Trustee, as applicable, in substantially the forms filed or incorporated by reference as Exhibits to the Registration Statement. 2 Centex Corporation July 21, 1995 Page 2 As Vice President, Chief Legal Officer and Secretary of the Company, I have participated in and am familiar with the corporate proceedings of the Company relating to the preparation of the Company's Registration Statement on Form S-3 filed with the Securities and Exchange Commission (the "Commission") on this date (the "Registration Statement"), providing for the registration of the Debt Securities for sale to the Underwriters from time to time under the Securities Act of 1933, as amended (the "1933 Act"), and Rule 415 promulgated thereunder. In connection with the foregoing, I have researched such questions of law and examined the originals or copies of the Registration Statement, the Subordinated Indenture, and the forms of Underwriting Agreement, Pricing Agreement, Senior Indenture and Supplemental Indentures filed or incorporated by reference as Exhibits to the Registration Statement, and such corporate records, agreements or other instruments of the Company and other instruments and documents as I have deemed relevant and necessary to require as a basis for the opinion hereinafter expressed. As to various questions of fact material to such opinion, I have, where relevant facts were not independently established, relied upon statements of other officers of the Company, whom I believe to be responsible. Based upon the foregoing and in reliance thereon, I advise you that in my opinion when (i) the series designation with respect to a series of Debt Securities to be sold by the Company to the Underwriters and the other matters relating thereto shall have been approved by the Board of Directors of the Company (or a duly appointed committee thereof), (ii) the Registration Statement shall have become effective under the 1933 Act, (iii) the Underwriting Agreement, Pricing Agreement, Senior Indenture, if applicable, and Supplemental Indenture with respect to such series of Debt Securities shall have been authorized, executed and delivered by the parties thereto in substantially the forms filed or incorporated by reference, as the case may be, as Exhibits to the Registration Statement, and (iv) the Debt Securities of such series shall have been issued, executed, authenticated, delivered and sold in accordance with the provisions of the Senior Indenture or the Subordinated Indenture, as applicable, and the Underwriting Agreement, Pricing Agreement and Supplemental Indenture relating to the Debt Securities of such series, the Debt Securities of such series will be validly issued and will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by equitable principles which may limit the availability of certain equitable remedies (such as specific performance) in certain instances and applicable bankruptcy, insolvency, reorganization, moratorium or similar laws related to or affecting creditors' rights generally. The opinion expressed above is subject to the qualification that I am a member of the Bar of the State of Texas and such opinion is limited to the laws of the State of Texas, the United States of America and, to the extent relevant to the opinion expressed above, the General Corporation Law of the State of Nevada (based solely upon a reading of such statute and without consideration of any judicial or administrative interpretations thereof). 3 Centex Corporation July 21, 1995 Page 3 I hereby consent to the reference to myself under the caption "Legal Opinions" in the Prospectus included in the Registration Statement and to the filing of this opinion as Exhibit 5.1 to the Registration Statement. The foregoing, however, shall not constitute an admission by me that I am an expert as provided for in Sections 7 and 11 of the 1933 Act. Very truly yours, /s/ RAYMOND G. SMERGE Raymond G. Smerge Vice President, Chief Legal Officer and Secretary EX-12.1 6 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12.1 Centex Corporation Ratio of Earnings to Fixed charges EXCLUDING CMO'S & SAVINGS AND LOAN (dollars in thousands)
Year Year Year Year Year Ended Ended Ended Ended Ended 3/31/95 3/31/94 3/31/93 3/31/92 3/31/91 -------- -------- -------- -------- -------- Fixed Charges Interest incurred, net 33,014 29,683 22,108 22,140 27,423 Illinois Cement Co. and Texas-Lehigh Cement Co. interest expense - 290 638 1,184 1,577 one-third of rentals 5,162 4,060 2,634 2,131 1,808 -------- -------- -------- -------- -------- 38,176 34,033 25,380 25,455 30,808 ======== ======== ======== ======== ======== Earnings Consolidated net income 92,248 85,162 61,038 34,557 43,605 Add (deduct): Consolidated provision for income taxes 53,540 49,851 30,721 11,295 12,977 Fixed charges 38,176 34,033 25,380 25,455 30,808 CTX Mortgage & Subs' (earnings)/loss before taxes & cumulative effect (1,442) (71,062) (48,035) (20,019) (8,412) CTX Holding & TTSB EBT (7,978) (2,565) (3,027) (2,115) (1,254) -------- -------- -------- -------- -------- 174,544 95,419 66,077 49,173 77,724 ======== ======== ======== ======== ======== Ratio of earnings to fixed charges 4.57 2.80 2.60 1.93 2.52 ======== ======== ======== ======== ========
2 Ratio of Earnings to Fixed Charges INCLUDING CMO'S & SAVINGS AND LOAN (dollars in thousands)
Year Year Year Year Year Ended Ended Ended Ended Ended 3/31/95 3/31/94 3/31/93 3/31/92 3/31/91 -------- -------- -------- -------- -------- Fixed charges Total Interest Expense 58,771 68,856 63,721 67,838 91,747 Illinois Cement Co. and Texas-Lehigh Cement Co. interest expense - 290 638 1,184 1,577 One-third of rentals 5,162 4,060 2,634 2,131 1,808 External interest (CMO'S) 1,267 2,286 4,429 6,732 7,729 Amortization of discount and capitalized expense (CMO'S) 136 574 829 450 206 -------- -------- -------- -------- -------- 65,336 76,066 72,251 78,335 103,067 ======== ======== ======== ======== ======== Earnings Consolidated net income 92,248 85,162 61,038 34,557 43,605 Add (deduct): Consolidated provision for income taxes 53,540 49,851 30,721 11,295 12,977 Fixed charges 65,336 76,066 72,251 78,335 103,067 -------- -------- -------- -------- -------- 211,124 211,079 164,010 124,187 159,649 ======== ======== ======== ======== ======== Ratio of earnings to fixed charges 3.23 2.77 2.27 1.59 1.55 ======== ======== ======== ======== ========
EX-23.1 7 CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated May 12, 1995 which appears at page 39 of Centex Corporation's 1995 Annual Report to Stockholders, which is incorporated by reference in the Joint Annual Report on Form 10-K of Centex Corporation, 3333 Holding Corporation, and Centex Development Company, L.P. for the year ended March 31, 1995, and to all references to our firm included in this Registration Statement on Form S-3. ARTHUR ANDERSEN LLP Dallas, Texas July 19, 1995 EX-25.1 8 FORM T-1 (SENIOR DEBT SECURITIES) 1 EXHIBIT 25.1 ******************************************************************************** FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________ [Not applicable.] TEXAS COMMERCE BANK NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) Not applicable (Jurisdiction of incorporation or organization if not a U.S. national bank) 74-0800980 (I.R.S. Employer Identification No.) 712 Main Street, Houston, Texas 77002 (Address of principal executive offices) (Zip code) Carol Kirkland, 712 Main Street, 26th Floor, Houston, Texas 77002, (713) 546-2449 (Name, address and telephone number of agent for service) CENTEX CORPORATION (Exact name of obligor as specified in its charter) Nevada 75-0778259 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3333 Lee Parkway, Dallas, Texas 75219 (Address of principal executive offices) (Zip Code) SENIOR DEBT SECURITIES (Title of the indenture securities) ******************************************************************************** 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee-- A. Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency, Washington, D. C. Federal Deposit Insurance Corporation, Washington, D. C. The Board of Governors of the Federal Reserve System, Washington, D.C. B. Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. As of July 14, 1995 No such affiliation exists. See Note, Page 7 hereof. ITEM 3. VOTING SECURITIES OF THE TRUSTEE. Furnish the following information as to each class of voting securities of the trustee. Not applicable. ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES. If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, furnish the following information: (a) Title of the securities outstanding under each such other indenture. Not applicable. 2 3 (b) A brief statement of the facts relied upon as a basis for the claim that no conflicting interest within the meaning of Section 310(b)(1) of the Act arises as a result of the trusteeship under any such other indenture, including a statement as to how the indenture securities will rank as compared with the securities issued under such other indenture. Not applicable. ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH OBLIGOR OR UNDERWRITERS. If the trustee or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee, or representative of the obligor or of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection. Not applicable. ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS. Furnish the following information as to the voting securities of the trustee owned beneficially by the obligor and each director, partner and executive officer of the obligor. Not applicable. ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS. Furnish the following information as to the voting securities of the trustee owned beneficially by each underwriter for the obligor and each director, partner, and executive officer of each such underwriter. Not applicable. ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations in default by the trustee. Not applicable. 3 4 ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of an underwriter for the obligor, furnish the following information as to each class of securities of such underwriter any of which are so owned or held by the trustee. Not applicable. ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR. If the trustee owns beneficially or holds as collateral security for obligations in default voting securities of a person who, to the knowledge of the trustee (1) owns 10% or more of the voting securities of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the following information as to the voting securities of such person. Not applicable. ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50% or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person any of which are so owned or held by the trustee. Not applicable. ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE. Except as noted in the instructions to the Form T-1, if the obligor is indebted to the trustee, furnish the following information: nature of indebtedness, amount outstanding and date due. Not applicable. 4 5 ITEM 13. DEFAULTS BY THE OBLIGOR. (a) State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default. As of July 14, 1995 No such default exists or has existed. (b) If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default. As of July 14, 1995 No such default exists or has existed. ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate of the trustee, describe each such affiliation. Not applicable. ITEM 15. FOREIGN TRUSTEE. Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not applicable. ITEM 16. LIST OF EXHIBITS. List below all exhibits filed as part of this statement of eligibility. * 1. A copy of the articles of association of the trustee as now in effect. ** 2. A copy of the certificate of authority of the trustee to commence business. 5 6 ** 3. A copy of the certificate of authorization of the trustee to exercise corporate trust powers issued by the Board of Governors of the Federal Reserve System under date of January 21, 1948. *** 4. A copy of the existing bylaws of the trustee. 5. A copy of each indenture referred to in Item 4, if the obligor is in default. Not Applicable. 6. The consent of the United States institutional trustees required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. A copy of any order pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not applicable. 9. Foreign trustees are required to file a consent to service of process on Form F-X. Not applicable. - ----------------------------- * Incorporated by reference to Exhibit bearing the same Exhibit number submitted with the Form T-1 of Texas Commerce Bank National Association with respect to File No. 33-51417. ** Incorporated by reference to Exhibit bearing the same Exhibit number submitted with the Form T-1 of Texas National Bank of Commerce of Houston with respect to File No. 2-24599. *** Incorporated by reference to Exhibit bearing the same Exhibit number submitted with the Form T-1 of Texas Commerce Bank National Association with respect to File No. 33-53077. [Remainder of Page Intentionally Left Blank] 6 7 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Texas Commerce Bank National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Houston, and State of Texas, on the 14th day of July, 1995. TEXAS COMMERCE BANK NATIONAL ASSOCIATION (Trustee) By: /s/ WAYNE MENTZ Wayne Mentz Assistant Vice President and Trust Officer NOTE The answer to item 2 insofar as such answer relates to what persons are owners of 10% or more of the voting securities of the obligor, or are owners of 50% or more of the voting securities of the obligor or are affiliates, and the amounts and percentages of such securities, if any, owned by each of the foregoing, respectively, are based upon information furnished to the trustee by the obligor. While the trustee has no reason to doubt the accuracy of any such information, it cannot accept any responsibility therefor. Accordingly, the trustee disclaims responsibility as to the accuracy and completeness of the information received from the obligor relating to the answers to item 2. 7 8 EXHIBIT 6 Securities & Exchange Commission Washington, D.C. 20549 Gentlemen: The undersigned is trustee under an Indenture dated as of , 199 , as supplemented from time to time by supplemental indentures thereto, to be entered into between Centex Corporation and Texas Commerce Bank National Association, as Trustee, entered into in connection with the issuance of its Senior Debt Securities. In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned hereby consents that reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities & Exchange Commission upon its request therefor. Very truly yours, TEXAS COMMERCE BANK NATIONAL ASSOCIATION By: /s/ WAYNE MENTZ Wayne Mentz Assistant Vice President and Trust Officer EX-25.2 9 FORM T-1 (SUBORDINATED DEBT SECURITIES) 1 EXHIBIT 25.2 ****************************************************************************** FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________ [Not applicable.] TEXAS COMMERCE BANK NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) Not applicable (Jurisdiction of incorporation or organization if not a U.S. national bank) 74-0800980 (I.R.S. Employer Identification No.) 712 Main Street, Houston, Texas 77002 (Address of principal executive offices) (Zip code) Carol Kirkland, 712 Main Street, 26th Floor, Houston, Texas 77002, (713) 546-2449 (Name, address and telephone number of agent for service) CENTEX CORPORATION (Exact name of obligor as specified in its charter) Nevada 75-0778259 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3333 Lee Parkway, Dallas, Texas 75219 (Address of principal executive offices) (Zip Code) SUBORDINATED DEBT SECURITIES (Title of the indenture securities) ****************************************************************************** 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee-- (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency, Washington, D. C. Federal Deposit Insurance Corporation, Washington, D. C. The Board of Governors of the Federal Reserve System, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. As of July 14, 1995 No such affiliation exists. See Note, Page 7 hereof. ITEM 3. VOTING SECURITIES OF THE TRUSTEE. Furnish the following information as to each class of voting securities of the trustee. Not applicable. ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES. If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, furnish the following information: (a) Title of the securities outstanding under each such other indenture. Not applicable. 2 3 (b) A brief statement of the facts relied upon as a basis for the claim that no conflicting interest within the meaning of Section 310(b)(1) of the Act arises as a result of the trusteeship under any such other indenture, including a statement as to how the indenture securities will rank as compared with the securities issued under such other indenture. Not applicable. ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH OBLIGOR OR UNDERWRITERS. If the trustee or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee, or representative of the obligor or of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection. Not applicable. ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS. Furnish the following information as to the voting securities of the trustee owned beneficially by the obligor and each director, partner and executive officer of the obligor. Not applicable. ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS. Furnish the following information as to the voting securities of the trustee owned beneficially by each underwriter for the obligor and each director, partner, and executive officer of each such underwriter. Not applicable. ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations in default by the trustee. Not applicable. 3 4 ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of an underwriter for the obligor, furnish the following information as to each class of securities of such underwriter any of which are so owned or held by the trustee. Not applicable. ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR. If the trustee owns beneficially or holds as collateral security for obligations in default voting securities of a person who, to the knowledge of the trustee (1) owns 10% or more of the voting securities of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the following information as to the voting securities of such person. Not applicable. ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50% or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person any of which are so owned or held by the trustee. Not applicable. ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE. Except as noted in the instructions to the Form T-1, if the obligor is indebted to the trustee, furnish the following information: nature of indebtedness, amount outstanding and date due. Not applicable. 4 5 ITEM 13. DEFAULTS BY THE OBLIGOR. (a) State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default. As of July 14, 1995 No such default exists or has existed. (b) If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default. As of July 14, 1995 No such default exists or has existed. ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate of the trustee, describe each such affiliation. Not applicable. ITEM 15. FOREIGN TRUSTEE. Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not applicable. ITEM 16. LIST OF EXHIBITS. List below all exhibits filed as part of this statement of eligibility. * 1. A copy of the articles of association of the trustee as now in effect. ** 2. A copy of the certificate of authority of the trustee to commence business. 5 6 ** 3. A copy of the certificate of authorization of the trustee to exercise corporate trust powers issued by the Board of Governors of the Federal Reserve System under date of January 21, 1948. *** 4. A copy of the existing bylaws of the trustee. 5. A copy of each indenture referred to in Item 4, if the obligor is in default. Not Applicable. 6. The consent of the United States institutional trustees required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. A copy of any order pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not applicable. 9. Foreign trustees are required to file a consent to service of process on Form F-X. Not applicable. - ----------------------------- * Incorporated by reference to Exhibit bearing the same Exhibit number submitted with the Form T-1 of Texas Commerce Bank National Association with respect to File No. 33-51417. ** Incorporated by reference to Exhibit bearing the same Exhibit number submitted with the Form T-1 of Texas National Bank of Commerce of Houston with respect to File No. 2-24599. *** Incorporated by reference to Exhibit bearing the same Exhibit number submitted with the Form T-1 of Texas Commerce Bank National Association with respect to File No. 33-53077. [Remainder of Page Intentionally Left Blank] 6 7 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Texas Commerce Bank National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Houston, and State of Texas, on the 14th day of July, 1995. TEXAS COMMERCE BANK NATIONAL ASSOCIATION (Trustee) By: /s/ WAYNE MENTZ Wayne Mentz Assistant Vice President and Trust Officer NOTE The answer to item 2 insofar as such answer relates to what persons are owners of 10% or more of the voting securities of the obligor, or are owners of 50% or more of the voting securities of the obligor or are affiliates, and the amounts and percentages of such securities, if any, owned by each of the foregoing, respectively, are based upon information furnished to the trustee by the obligor. While the trustee has no reason to doubt the accuracy of any such information, it cannot accept any responsibility therefor. Accordingly, the trustee disclaims responsibility as to the accuracy and completeness of the information received from the obligor relating to the answers to item 2. 7 8 EXHIBIT 6 Securities & Exchange Commission Washington, D.C. 20549 Gentlemen: The undersigned is trustee under an Indenture dated as of March 12, 1987, as supplemented from time to time by supplemental indentures thereto, between Centex Corporation and Texas Commerce Bank National Association, as Trustee, entered into in connection with the issuance of its Subordinated Debt Securities. In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned hereby consents that reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities & Exchange Commission upon its request therefor. Very truly yours, TEXAS COMMERCE BANK NATIONAL ASSOCIATION By: /s/ WAYNE MENTZ Wayne Mentz Assistant Vice President and Trust Officer -----END PRIVACY-ENHANCED MESSAGE-----