EXHIBIT 99(O)
--------------------------------------------------------------------------------
PULTE HOMES, INC.
-------------------------------------------
INDENTURE SUPPLEMENT
DATED AS OF MAY 17, 2006
TO
INDENTURE
DATED AS OF OCTOBER 24, 1995
-------------------------------------------
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL ASSOCIATION
TRUSTEE
--------------------------------------------------------------------------------
SENIOR DEBT SECURITIES
INDENTURE SUPPLEMENT, dated as of May 17, 2006, among PULTE HOMES, INC., a
Michigan corporation ("Company"), located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee ("Trustee"), and the Company's direct and indirect
wholly-owned domestic homebuilding subsidiaries set forth on the signature pages
hereto (collectively, the "Guarantors").
RECITALS
The Company and certain Guarantors have heretofore executed and delivered
to the Trustee that certain Indenture, dated as of October 24, 1995
(hereinafter, the "Original Indenture" and, as amended by the Indenture
Supplement dated as of August 27, 1997, the Indenture Supplement dated as of
March 20, 1998, the Indenture Supplement dated as of January 31, 1999, two
Indenture Supplements each dated as of April 3, 2000, the Indenture Supplement
dated as of February 21, 2001, the Indenture Supplement dated as of July 31,
2001, the Indenture Supplement dated as of August 6, 2001, the Indenture
Supplement dated as of June 12, 2002, the Indenture Supplement dated as of
February 3, 2003, the Indenture Supplement dated as of May 22, 2003, the
Indenture Supplement dated as of January 16, 2004, the Indenture Supplement
dated as of July 9, 2004, the Indenture Supplement dated as of February 10, 2005
and this Indenture Supplement, hereinafter, the "Indenture"), pursuant to which
one or more series of unsecured debenture, notes or other evidences of
indebtedness of the Company (hereinafter, the "Securities") may be issued from
time to time.
Section 901(6) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 of the Indenture.
Pursuant to the terms of Section 901(6) of the Indenture, the Company
desires to provide for the establishment of the form and terms of a new series
of its Securities to be known as its 7.375% Senior Notes due 2046 (the "Notes").
Section 901(9) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of the Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Indenture Supplement is authorized or
permitted by the Indenture and (ii) a copy of the resolutions of its Board of
Directors certified by its Secretary, pursuant to which this Indenture
Supplement has been authorized.
All things necessary to make this Indenture Supplement a valid agreement
of the Company and the Trustee and a valid amendment of and supplement to the
Indenture have been done.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the mutual covenants and
agreements contained herein, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Notes, and, as to Articles III
and V, all Securities or series thereof, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in
this Indenture Supplement or in the form of Note attached as Exhibit A hereto or
otherwise clearly required by the context hereof or thereof, all capitalized
terms used and not defined in this Indenture Supplement that are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture. For all purposes of this Indenture Supplement:
"Certificated Note" has the meaning set forth in Section 2.04 hereof.
"Closing Date" means May 17, 2006.
"Commission" means the Securities and Exchange Commission and any
successor thereto.
"Company" has the meaning set forth in the preamble.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Exchange Act, specified for that purpose as
contemplated by Section 301 or any successor clearing agency registered under
the Exchange Act as contemplated by Section 305, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of such
series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Note" has the meaning set forth in Section 2.04 hereof.
"Global Security" means a Security bearing the legend specified in Section
204 (as added hereby) evidencing all or part of a series of Securities, issued
to the Depositary for such series or its nominee, and registered in the name of
such Depositary or nominee. Unless otherwise specified, references to a
permanent global security in this Indenture shall include any Global Security.
"Global Securities Legend" means the legend set forth on the form of Note
attached as Exhibit A hereto.
"Guarantors" has the meaning set forth in the preamble.
"Indenture" has the meaning set forth in the recitals.
-2-
"Interest Payment Date" has the meaning set forth in Section 2.02 hereof.
"Notes" means any of the Securities of the series designated in the third
paragraph of the recitals hereof and Section 2.01 hereof that are authenticated
and delivered under the Indenture. For all purposes of the Indenture, the term
"Notes" shall include the Notes initially issued on the Closing Date and any
other Notes issued after the Closing Date under the Indenture. For purposes of
the Indenture, the Notes shall vote together and otherwise constitute a single
series of Securities under the Indenture.
"Original Indenture" has the meaning set forth in the recitals.
"Regular Record Date" has the meaning set forth in Section 2.02 hereof.
"Registrar" has the meaning set forth in Section 4.03 hereof.
"Securities" has the meaning set forth in the recitals.
"Trustee" has the meaning set forth in the preamble.
"Underwriters" means the underwriters listed on Schedule II of the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated May 10,
2006, relating to the 7.375% Senior Notes due 2046, by and among the Company,
the Guarantors and Wachovia Capital Markets, LLC, as representative of the
several Underwriters.
The parties hereto acknowledge that certain terms are defined in both the
Original Indenture and in this Indenture Supplement. The parties hereto hereby
agree that, unless otherwise expressly stated or the context otherwise requires,
any term which is defined in both the Original Indenture and in this Indenture
Supplement, when used with respect to or in the certificates evidencing the
Notes, shall have the meaning set forth in this Indenture Supplement.
ARTICLE II
TERMS OF THE NOTES
SECTION 2.01. Establishment of the Notes.
(a) There is hereby authorized and established a series of Securities
designated the 7.375% Senior Notes due 2046, limited in aggregate principal
amount to $150,000,000 (or $172,500,000 if the Underwriters' option to purchase
additional Notes set forth in the Underwriting Agreement is exercised in
full)(in each case, except as provided in Section 301(2) of the Original
Indenture); provided that the Company may, without the consent of the Holders of
the Outstanding Notes, "reopen" this series of Securities so as to increase the
aggregate principal amount of Notes Outstanding in compliance with the
procedures set forth in the Indenture, including Sections 301 and 303 thereof,
so long as any such additional Notes have the same tenor and terms (including,
without limitation, rights to receive accrued and unpaid interest) as the Notes
then Outstanding.
-3-
SECTION 2.02. Terms of the Notes. The Stated Maturity on which the
principal of the Notes shall be due and payable shall be June 1, 2046.
The principal of the Notes shall bear interest at the rate of 7.375% per
annum from May 17, 2006 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable quarterly in arrears on
June 1, September 1, December 1 and March 1 (each, an "Interest Payment Date")
in each year, commencing September 1, 2006, to the Persons in whose names the
Notes (or one or more Predecessor Securities) are registered at the close of
business on the May 15, August 15, November 15 or February 15 immediately
preceding such Interest Payment Dates (each, a "Regular Record Date") regardless
of whether such Regular Record Date is a Business Day. Any overdue principal of
and premium, if any, on the Notes and any overdue installment of interest on the
Notes shall, to the extent permitted by law, bear interest at the rate of 7.375%
per annum.
Interest on the Notes shall be calculated on the basis of a 360-day year
of twelve 30-day months.
No additional amounts will be payable on any Notes held by a Person who is
a non-United States citizen in respect of any tax, assessment or governmental
charge withheld or deducted.
The Borough of Manhattan, in The City of New York is hereby designated as
a Place of Payment for the Notes; and the place where the principal of and
interest on the Notes shall be payable, where Notes may be surrendered for
registration of transfer and exchange, and where notices and, if other than in
the manner provided in Section 105 of the Original Indenture, demands to or upon
the Company in respect of the Notes may be served, shall be the office or agency
maintained by the Company for that purpose in the Borough of Manhattan, in The
City of New York, which initially shall be the office of the Trustee located at
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration.
The Notes are subject to redemption at the option of the Company as
provided in the form of Notes attached hereto as Exhibit A and in the Indenture.
The Notes shall not have the benefit of a sinking fund.
The Notes shall be subject to the restricted covenants described in
Sections 1006 and 1007 and Article 8 of the Indenture.
The Notes shall be subject to defeasance and covenant defeasance at the
option of the Company as provided in Sections 1401, 1402 and 1403 of the
Indenture; provided that, without limitation to the provisions of Sections 1401,
1402 and 1403 of the Original Indenture, the provisions of Article III of this
Indenture Supplement shall survive any such defeasance or covenant defeasance
and remain in full force and effect.
The Notes shall have such other terms and provisions as are set forth in
the form of Note attached hereto as Exhibit A (all of which incorporated by
reference in and made a part of this Indenture Supplement as if set forth in
full at this place).
-4-
SECTION 2.03. Denominations. The Notes shall be issued in denominations
equal to integral multiples of $25, but in any case not less then $25.
SECTION 2.04. Form. The Notes shall be in substantially the form set forth
in Exhibit A hereto, with such changes therein as may be authorized by any
officer of the Company executing the Notes by manual or facsimile signature,
such approval to be conclusively evidenced by the execution thereof by such
officer.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture Supplement, and the Company and
the Trustee, by their execution and delivery of this Indenture Supplement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture Supplement, the provisions of this Indenture Supplement shall
govern and be controlling.
The Notes shall be issued as Registered Securities without coupons.
The Notes shall be issued initially in the form of one or more permanent
Global Securities (collectively, the "Global Notes"). The initial Depositary for
the Global Notes shall be The Depository Trust Company. The Global Notes shall
be registered in the name of the Depositary or a nominee of the Depositary and
deposited with the Trustee, as custodian for the Depositary. Notes may be issued
in certificated form without interest coupons only to the extent provided by the
Indenture and this Indenture Supplement ("Certificated Notes"). Except as
provided in Section 4.02 of this Indenture Supplement, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of
Certificated Notes.
Holders of beneficial interests shall have no rights under the Indenture
with respect to any Global Security held on their behalf by the Depositary or by
the Trustee as Securities Custodian or under such Global Security, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its holders of
beneficial interests, the operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a beneficial interest in any
Global Security.
ARTICLE III
INTENTIONALLY OMITTED
APPLICATION OF AMENDMENTS TO INDENTURE
Section 3.01. Amendment to Definition of "Bank Credit Facility" in the
Indenture. The definition of "Bank Credit Facility" in Section 101 of the
Indenture is hereby amended and restated as follows:
-5-
"Bank Credit Facility" means the Second Amended and Restated Credit
Agreement, dated as of October 31, 2005, by and among Pulte Homes, Inc.,
material subsidiaries of Pulte Homes, Inc. as guarantors, JPMorgan Chase
Bank, N.A., as administrative agent, Citigroup Global Markets, Inc., as
syndication agent, and the other lenders named therein, as may be amended,
restated, supplemented, renewed, replaced or otherwise modified from time
to time, including any agreement extending the maturity of or refinancing
of or refunding all or any portion of the Indebtedness or increasing the
amount to be borrowed under such agreements or any successor agreement,
whether or not by or among the same parties.
SECTION 3.02. Amendment to Definition of "Restricted Subsidiary" in the
Indenture. The definition of "Restricted Subsidiary" in Section 101 of the
Indenture is hereby amended and restated as follows:
"Restricted Subsidiary" means any Guarantor and any other of the
Company's Subsidiaries as of the date of the Indenture and any successor
to such Guarantor or Subsidiary other than (i) First Heights Holding
Corp., LLC, Pulte Financial Companies, Inc., Pulte Mortgage LLC, Pulte
Diversified Companies, Inc. or North American Builders Indemnity
Corporation; (ii) ▇▇▇ ▇▇▇▇ Mortgage LLC and (iii) any successor to any of
the Subsidiaries described in clauses (i) and (ii).
ARTICLE IV
ORIGINAL ISSUE OF NOTES
SECTION 4.01. Notes. Notes in the aggregate principal amount of
$150,000,000 (or $172,500,000 if the Underwriters' option to purchase additional
Notes set forth in the Underwriting Agreement is exercised in full) may be
executed by the Company and delivered to the Trustee for authentication and the
Trustee shall thereupon authenticate and, on the Closing Date, deliver said
Notes upon a Company Order without any further action by the Company.
SECTION 4.02. Certificated Notes.
(a) Global Notes deposited with the Depositary or with the Trustee as
Trustee pursuant to Section 2.04 of this Indenture Supplement shall be
transferred to the beneficial owners thereof in the form of Certificated Notes
in an aggregate principal amount equal to the principal amount of such Global
Notes, in exchange for such Global Notes, only if such transfer complies with
Section 305 of the Original Indenture and Section 4.03 of this Indenture
Supplement and (i) the Company notifies the Trustee that the Depositary is no
longer willing or able to act as a depositary or clearing system for the Notes
or the Depositary ceases to be a "clearing agency" registered under the Exchange
Act, and a successor depositary or clearing system is not appointed by the
Company within 90 days of such notice or cessation, (ii) upon the occurrence and
continuation of an Event of Default, or (iii) the Company, in its sole
discretion, notifies the
-6-
Trustee in writing that it elects to cause the issuance of Certificated Notes
under the Indenture rather than have the Notes represented by a Global Security.
(b) Any Global Note that is transferable to the beneficial owners thereof
pursuant to this Section 4.02 shall be surrendered by the Depositary to the
Trustee, to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations. Any portion of a Global Note
transferred pursuant to this Section 4.02 shall be executed, authenticated and
delivered only in denominations equal to integral multiples of $25 of principal
amount, but in any case not less then $25 and registered in such names as the
Depositary shall direct.
(c) The registered Holder of a Global Note may grant proxies and otherwise
authorize any Person, including holders of beneficial interests, to take any
action which a Holder is entitled to take under the Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in
Section 4.02(a)(i), (ii) or (iii) of this Indenture Supplement, the Company will
promptly make available to the Trustee a reasonable supply of Certificated Notes
in fully registered form without interest coupons.
SECTION 4.03. Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When Certificated Notes
are presented to the Company's registrar with respect to the Notes (the
"Registrar") with a request:
(i) to register the transfer of such Certificated Notes; or
(ii) to exchange such Certificated Notes for an equal principal
amount of Certificated Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided,
however, that the Certificated Notes surrendered for transfer or exchange:
(A) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(B) are accompanied by the following additional information
and documents, as applicable:
(x) if such Certificated Notes are being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in the form set forth on the reverse side of the
Note); or
-7-
(y) if such Certificated Notes are being transferred to
the Company, a certification to that effect (in the form set
forth on the reverse side of the Note).
(b) Restrictions on Transfer of a Certificated Note for a Beneficial
Interest in a Global Note. A Certificated Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Certificated
Note, duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, together with written
instructions directing the Trustee to make, or to direct the Trustee to make, an
adjustment on its books and records with respect to such Global Note to reflect
an increase in the aggregate principal amount of the Notes represented by the
Global Note, such instructions to contain information regarding the Depositary
account to be credited with such increase, then the Trustee shall cancel such
Certificated Note and cause, or direct the Trustee to cause, in accordance with
the standing instructions and procedures existing between the Depositary and the
Trustee, the aggregate principal amount of Notes represented by the Global Note
to be increased by the aggregate principal amount of the Certificated Note to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Note equal to
the principal amount of the Certificated Note so canceled. If no Global Notes
are then outstanding and the Global Note has not been previously exchanged for
Certificated Notes pursuant to Section 4.02 of this Indenture Supplement, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Note in the
appropriate principal amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depositary, in accordance
with this Indenture Supplement (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Note shall
deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Note
or another Global Note and such account shall be credited in accordance
with such order with a beneficial interest in the applicable Global Note
and the account of the Person making the transfer shall be debited by an
amount equal to the beneficial interest in the Global Note being
transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Note to a beneficial interest in another Global Note, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Global Note to which such interest is being
transferred in an amount equal to the principal amount of the interest to
be so transferred, and the Registrar shall reflect on its books and
records the date and a corresponding decrease in the principal amount of
Global Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Indenture
Supplement (other than the provisions set forth in Section 4.02 of this
Indenture Supplement), a Global Note
-8-
may not be transferred as a whole except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
(d) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for
Certificated Notes, transferred, redeemed, repurchased or canceled, such Global
Note shall be returned by the Depositary to the Trustee for cancellation or
retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Certificated Notes,
transferred in exchange for an interest in another Global Note, redeemed,
repurchased or canceled, the principal amount of Notes represented by such
Global Note shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the custodian for such Global Note) with
respect to such Global Note, by the Trustee or the custodian, to reflect such
reduction.
(e) Obligations with Respect to Transfers of Notes.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate, Certificated Notes and
Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer
taxes, assessments or similar governmental charge payable upon exchange or
transfer pursuant to Sections 906, 1107 and 1305 of the Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent or the Registrar may
deem and treat the Person in whose name a Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company,
the Trustee, the Paying Agent or the Registrar shall be affected by notice
to the contrary.
(iv) The Company shall not be required to make and the Registrar
need not register transfers or exchanges of Notes selected for redemption
(except, in the case of Notes to be redeemed in part, the portion thereof
not to be redeemed) or any Notes for a period of 15 days before the
mailing of a notice of redemption of Notes to be redeemed.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture Supplement shall evidence the same debt and shall
be entitled to the same benefits under the Indenture as the Notes
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depositary or any other Person with respect to the accuracy of the records
of the Depositary or its nominee or of
-9-
any participant or member thereof, with respect to any ownership interest
in the Notes or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption or repurchase) or the payment of any
amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to
Holders under the Notes shall be given or made only to the registered
Holders (which shall be the Depositary or its nominee in the case of a
Global Note). The rights of beneficial owners in any Global Note shall be
exercised only through the Depositary subject to the applicable rules and
procedures of the Depositary. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depositary with
respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture Supplement or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants, members or beneficial
owners in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this
Indenture Supplement, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Ratification. This Indenture Supplement shall be deemed part
of the Indenture in the manner and to the extent herein provided. Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect.
SECTION 5.02. Counterparts. This Indenture Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 5.03. Governing Law. This Indenture supplement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to the principles of conflicts of laws.
SECTION 5.04. Trustee. The Trustee makes no representation as to the
validity or sufficiency of this Indenture Supplement. The recitals contained
herein shall be taken as the statements of the Company and the Trustee assumes
no responsibility for their correctness.
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PULTE HOMES, INC.
[SEAL] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, General Counsel and Secretary
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION
[SEAL] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Officer
Attest:
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Officer
STATE OF MICHIGAN )
: ss.:
COUNTY OF )
On the 17th of May, 2006, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to
me known, who, being by me duly sworn, did depose and say that he is Vice
President and Treasurer of PULTE HOMES, INC. one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Notary Public
STATE OF ILLINOIS )
: ss.:
COUNTY OF )
On the 17th of May, 2006, before me personally came ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to
me known, who being by me duly sworn, did depose and say that he or she is an
Authorized Officer of ▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL ASSOCIATION, one of
the corporations described in and which executed the foregoing instrument; that
he or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
/s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
----------------------
Notary Public
EXHIBIT A
FORM OF NOTE
Each Global Note shall bear a legend substantially in the form set forth
in this paragraph and substantially in the form set forth in the next succeeding
paragraph (collectively, the "Global Securities Legend"). Unless this
certificate 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 hereon 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 owner hereof, Cede & Co., has an
interest herein.
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of the Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.
REGISTERED
PULTE HOMES, INC.
7.375% SENIOR NOTES DUE 2046
$150,000,000 CUSIP No. ▇▇▇▇▇▇▇▇▇
No. G-1
PULTE HOMES, INC., a corporation. duly organized and existing under the
laws of Michigan (herein called the "Company", which term includes any successor
Person under the Indenture referred to below), for value received, hereby
promises to pay to Cede & Co., c/o Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or registered assigns, the principal sum indicated on
Schedule A hereto on June 1, 2046 and to pay interest thereon from May 17, 2006,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, quarterly in arrears on June 1, September 1, December 1 and
March 1 in each year, commencing on September 1, 2006, at the rate of 7.375% per
annum, until the principal hereof is paid or made available for payment and (to
the extent that the payment of such interest shall be legally enforceable) at
the same rate per annum on any overdue principal and on any overdue installment
of interest. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be May 15, August 15, November 15 or February 15 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture. Payment of the principal of (and
premium, if any) and interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company, payment of interest
may be made by United States dollar check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
wire transfer to an account maintained by the payee with a bank located in the
United States.
The payment of, and any premium and interest on, the Notes shall not be
determined with reference to any index or formula.
-2-
Payments of interest hereon with respect to any Interest Payment Date will
include interest accrued to but excluding such Interest Payment Date. Interest
on this Security shall be computed on the basis of a 360-day year of twelve
30-day months.
This Security is a Global Security within the meaning of the Indenture and
is registered in the name of the Depositary for this series of Securities or a
nominee of the Depositary. Subject to the terms of the Indenture, beneficial
interests in this Security shall be held through the book-entry facilities of
the Depositary, and such beneficial interests shall be held in denominations
equal to integral multiples of $25, but in any case not less then $25. As long
as this Security is registered in the name of a Depositary or its nominee, the
Company will make, or will cause the Trustee to make, payments of principal of
and premium, if any, and interest on this Security by wire transfer of
immediately available funds to such Depositary or its nominee. Notwithstanding
the above, the final payment on this Security will be made only upon
presentation and surrender of this Security at an office or agency maintained by
the Company for that purpose in any Place of Payment for the Securities of this
series.
This Security is one of a duly authorized issue of securities of the
Company (hereinafter called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of October 24, 1995 (as amended by the
Indenture Supplement dated as of August 27, 1997, the Indenture Supplement dated
as of March 20, 1998, the Indenture Supplement dated as of January 31, 1999, two
Indenture Supplements each dated as of April 3, 2000, the Indenture Supplement
dated as of February 21, 2001, the Indenture Supplement dated as of July 31,
2001, the Indenture Supplement dated as of August 6, 2001, the Indenture
Supplement dated as of June 12, 2002, the Indenture Supplement dated as of
February 3, 2003, the Indenture Supplement dated as of May 22, 2003, the
Indenture Supplement dated as of January 16, 2004, the Indenture Supplement
dated as of July 9, 2004, the Indenture Supplement dated as of February 10, 2005
and the Indenture Supplement dated as of the date hereof (the "May 2006
Indenture Supplement"), (as so amended, the "Indenture"), each between the
Company (formerly known as Pulte Corporation) and ▇. ▇. ▇▇▇▇▇▇ Trust Company,
National Association, as Trustee (as successor Trustee to Bank One Trust
Company, N.A., which was successor Trustee to The First National Bank of
Chicago) (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to $150,000,000 (or $172,500,000 if the Underwriters' option to purchase
additional Notes set forth in the Underwriting Agreement is exercised in full);
provided that the aggregate principal amount of the Securities of this series
which may be outstanding may be increased by the Company upon the terms and
subject to the conditions set forth in the May 2006 Indenture Supplement. The
Securities of this series are issuable only in registered form, without coupons,
in the denominations specified in the May 2006 Indenture Supplement. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
-3-
This Security will be redeemable, in whole or in part, from time to time
at the option of the Company, at any time on or after June 1, 2011 ("Redemption
Date") at a redemption price equal to 100% of the principal amount of this
Security to be redeemed plus accrued and unpaid interest on the principal amount
being redeemed to such Redemption Date; provided, however, that installments of
interest on this Security that are due and payable on an Interest Payment Date
falling on or prior to the relevant Redemption Date shall be payable to the
Holders of this Security, registered as such at the close of business on the
relevant Regular Record Date or Special Record Date, as the case may be,
according to their terms and the provisions of the Indenture.
If money sufficient to pay the redemption price of and accrued interest on
this Security to be redeemed is deposited with the Trustee on or before the
Redemption Date, on and after the Redemption Date interest will cease to accrue
on this Security (or such portions thereof) called for redemption and this
Security will cease to be outstanding.
Notice of any redemption by the Company will be mailed at least 60 days
before any Redemption Date to the Trustee. If less than all the Securities of
this series is to be redeemed at the option of the Company, the Securities to be
redeemed shall be selected by lot by the Depositary in the case of Securities
represented by a Global Note, or by such method as the Trustee deems fair and
appropriate, in the case of Securities that are not represented by a Global
Note, as provided in the Indenture.
This Security is not entitled to the benefit of a sinking fund or
mandatory redemption provisions.
If an Event of Default with respect to the Securities shall occur and be
continuing, the principal amount of all the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Securities. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Outstanding Securities, on behalf of the Holders of all Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall
-4-
not have received from the Holders of a majority in principal amount of the
Outstanding Securities a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this 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 interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the May 2006
Indenture Supplement shall have the meanings assigned to them in the May 2006
Indenture Supplement and all other terms used in this Security and defined
elsewhere in the Indenture shall have the meanings assigned to them therein.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below, directly or through an Authenticating Agent, by
manual signature of an authorized signatory, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
[SIGNATURE PAGE FOLLOWS]
-5-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
PULTE HOMES, INC.
By:
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Attest:
By:
_________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, General Counsel
and Secretary
Dated: May 17, 2006
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION
as Trustee
By:_____________________________________________
Authorized Signature
-6-
ABBREVIATIONS
The following abbreviations, when used in the inscription above, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _______________ Custodian _________________
(Cust) (Minor)
under the Uniform Gifts to Minors Act
___________________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
____________________________________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder(s) hereby sell(s),
assign(s) and transfer(s) unto ________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE _________
_______________________________________________________________________________
_______________________________________________________________________________
(Please Print or Typewrite Name and Address Including Postal Zip Code of
Assignee)
_______________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitute(s) and appoint(s)
_______________________________________________________________________________
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
-7-
Dated:_____________
Signature Guaranteed:
_________________ __________________
NOTICE: The signature(s) to this assignment must correspond with the name(s) as
written upon the within instrument in every particular, without alteration or
enlargement or any change whatever. The signature(s) must be guaranteed by an
eligible guarantor institution with membership in an approved signature
guarantee "medallion" program pursuant to Commission Rule 17Ad-15.
-8-
GUARANTEE
For value received, each of the undersigned hereby irrevocably and
unconditionally guarantees, jointly and severally, on a senior basis to the
Holder of this Security and to the Trustee, on behalf of the Holder, (i) the due
and punctual payment of the principal of and interest on this Security, when and
as the same shall become due and payable, whether at Stated Maturity, by
declaration of acceleration or otherwise, the due and punctual payment of
interest on the overdue principal of and interest, if any, on this Security, to
the extent lawful, and the due and punctual performance of all other obligations
of the Company to the Holder of this Security or the Trustee all in accordance
with the terms of this Security and the Indenture and (ii) in the case of any
extension of time of payment or renewal of this Security or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, at Stated Maturity, by
declaration of acceleration or otherwise (the obligations in clauses (i) and
(ii) hereof being the "Guaranteed Obligations"). This Guarantee will not be
valid or obligatory for any purpose until the Trustee duly executes the
certificate of authentication on the Security upon which this Guarantee is
endorsed.
Dated: May 17, 2006
The Guarantors listed on the attached
Exhibit A
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, General Counsel
and Secretary
-9-
EXHIBIT A TO GUARANTEE
AMERICAN TITLE OF THE PALM BEACHES CORPORATION
ANTHEM ARIZONA L.L.C.
ASSET FIVE CORP.
ASSET SEVEN CORP.
▇▇▇▇'▇ ▇▇▇▇▇, L.L.C.
DEL ▇. ▇▇▇▇ FOOTHILLS CORPORATION
▇▇▇ ▇▇▇▇ CALIFORNIA CORP.
▇▇▇ ▇▇▇▇ COMMUNITIES, INC.
▇▇▇ ▇▇▇▇ COMMUNITIES OF ILLINOIS, INC. (formerly known as Bellasera Corp.)
▇▇▇ ▇▇▇▇ CORPORATION
▇▇▇ ▇▇▇▇ GOLF CORP.
▇▇▇ ▇▇▇▇ HOME CONSTRUCTION, INC.
▇▇▇ ▇▇▇▇ LIMITED HOLDING CO.
▇▇▇ ▇▇▇▇ SOUTHWEST CO.
▇▇▇ ▇▇▇▇ TEXAS LIMITED PARTNERSHIP
▇▇▇ ▇▇▇▇'▇ COVENTRY HOMES CONSTRUCTION CO.
▇▇▇ ▇▇▇▇'▇ COVENTRY HOMES, INC.
▇▇▇ ▇▇▇▇'▇ COVENTRY HOMES OF NEVADA, INC.
▇▇▇ ▇▇▇▇'▇ SPRUCE CREEK COMMUNITIES, INC.
▇▇▇ ▇▇▇▇'▇ SUNFLOWER OF TUCSON, INC.
DEVTEX LAND, L.P.
DIVOSTA BUILDING CORPORATION
DIVOSTA HOMES, L.P.
DIVOSTA HOME SALES, INC. (formerly known as DiVosta Homes, Inc.)
FLORIDA BUILDING PRODUCTS, LLC
▇▇▇▇▇▇▇▇ HILLS, LLC
ISLAND WALK DEVELOPMENT COMPANY
PB VENTURE L.L.C.
PBW CORPORATION
PC/BRE DEVELOPMENT L.L.C.
PC/BRE SPRINGFIELD L.L.C.
PC/BRE VENTURE L.L.C.
PC/BRE ▇▇▇▇▇▇▇ ▇▇▇▇ L.L.C.
PC/▇▇▇ ▇▇▇▇▇▇▇▇ L.L.C.
PH1 CORPORATION
PH2 CORPORATION
PH3 CORPORATION
PH4 CORPORATION
PHT BUILDING MATERIALS LIMITED PARTNERSHIP
PN I, INC.
▇▇ ▇▇, INC.
PULTE BUILDING SYSTEMS HOLDING COMPANY LLC
PULTE COMMUNITIES NJ, LIMITED PARTNERSHIP
PULTE DEVELOPMENT CORPORATION
PULTE HOME CORPORATION
-10-
PULTE HOME CORPORATION OF THE DELAWARE VALLEY
PULTE HOMES OF GREATER KANSAS CITY, INC.
PULTE HOMES OF MICHIGAN LLC
PULTE HOMES OF MICHIGAN I LIMITED PARTNERSHIP
PULTE HOMES OF MINNESOTA CORPORATION
PULTE HOMES OF NEW ENGLAND LLC
PULTE HOMES OF NEW MEXICO, INC.
PULTE HOMES OF NEW YORK, INC.
PULTE HOMES OF NJ, LIMITED PARTNERSHIP
PULTE HOMES OF OHIO LLC
PULTE HOMES OF PA, LIMITED PARTNERSHIP
PULTE HOMES OF TEXAS, ▇.▇.
▇▇▇▇▇ HOMES TENNESSEE LIMITED PARTNERSHIP
PULTE LAND COMPANY, LLC
PULTE LAND DEVELOPMENT CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE MICHIGAN HOLDINGS CORPORATION
PULTE MICHIGAN SERVICES, LLC
PULTE PAYROLL CORPORATION
PULTE REALTY CORPORATION
RADNOR HOMES, INC.
RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY, INC.
RN ACQUISITION 2 CORP.
TERRAVITA CORP.
TERRAVITA HOME CONSTRUCTION CO.
WIL CORPORATION
WILBEN, LLLP
-11-
SCHEDULE A
The initial principal amount of this Global Security is $150,000,000. The
following increases or decreases in the principal amount of this Global Security
have been made:
AMOUNT OF INCREASE AMOUNT OF DECREASE PRINCIPAL AMOUNT OF
IN PRINCIPAL IN PRINCIPAL THIS GLOBAL SECURITY SIGNATURE OF
AMOUNT OF THIS AMOUNT OF THIS FOLLOWING SUCH AUTHORIZED
DATE MADE GLOBAL SECURITY GLOBAL SECURITY DECREASE OR INCREASE SIGNATORY OF TRUSTEE
-------------- --------------------- --------------------- --------------------- --------------------
-12-