EXHIBIT 99.6
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
EXCHANGE AGENT AGREEMENT
,
2000
Bank One Trust Company, National Association
100 East Broad Street
Columbus, Ohio 43271-0181
Attention:
Ladies and Gentlemen:
PULTE CORPORATION, a Michigan corporation (the
“Company”), is offering to exchange (the
“Exchange Offer”) all of its outstanding
9 1/2% Notes due 2003 (the “Original
Notes”) for an equal principal amount of its registered
9 1/2% Notes due 2003, respectively (the “New
Notes” and, together with the Original Notes, the
“Notes”), pursuant to a prospectus (the
“Prospectus”) included in the Company’s
Registration Statement on Form S-4 (File
No. 333- ) as amended (the
“Registration Statement”), filed with the
Securities and Exchange Commission (the “SEC”)
and attached hereto as Exhibit A. The term “Expiration
Date” shall mean 5:00 p.m., New York City time, on
,
2000, unless the Exchange Offer is extended as provided in the
Prospectus, in which case the term “Expiration Date”
shall mean the latest date and time to which the Exchange Offer
is extended. Upon execution of this Agreement, Bank One Trust
Company, National Association will act as the Exchange Agent for
the Exchange Offer (the “Exchange Agent”).
Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the
“Letter of Transmittal”), the form of the notice of
guaranteed delivery (the “Notice of Guaranteed
Delivery”), the form of letter to brokers, the form of
letter to clients and the instruction form (collectively, the
“Tender Documents”) to be used by holders of
Original Notes in order to receive New Notes pursuant to the
Exchange Offer are attached hereto as Exhibit B.
The Company hereby appoints you to act as Exchange Agent in
connection with the Exchange Offer. In carrying out your duties
as Exchange Agent, you are to act in accordance with the
following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents
to all of the holders and participants on the day that you are
notified by the Company that the Registration Statement has
become effective under the Securities Act of 1933, as amended, or
as soon as practicable thereafter, and to make subsequent
mailings thereof after the date thereof and to any persons who
become holders prior to the Expiration Date and to any persons as
may from time to time be requested by the Company. All mailings
pursuant to this Section 1 shall be by first class mail,
postage prepaid, unless otherwise specified by the Company. You
shall also accept and comply with telephone requests for
information relating to the Exchange Offer provided that such
information shall relate only to the procedures for tendering
Original Notes in (or withdrawing tenders of Original Notes from)
the Exchange Offer. All other requests for information relating
to the Exchange Offer shall be directed to the Company,
Attention: Bruce E. Robinson.
2. You are to examine Letters of Transmittal and the
Original Notes and other documents delivered or mailed to you, by
or for the holders, prior to the Expiration Date, to ascertain
whether (i) the Letters of Transmittal are properly executed
and completed in accordance with the instructions set forth
therein, (ii) the Original Notes are in proper form for
transfer and (iii) all other documents submitted to you are
in proper form. In each case where a Letter of Transmittal or
other document has been improperly executed or completed or, for
any other reason, is not in proper form, or some other
irregularity exists, you are authorized to endeavor to take such
action as you consider appropriate to notify the tendering holder
of such irregularity and as to the appropriate means of
resolving the same. Determination of questions as to the proper
completion or execution of the Letters of Transmittal, or as to
the proper form for transfer of
the Original Notes or as to any other irregularity in connection
with the submission of Letters of Transmittal and/or Original
Notes and other documents in connection with the Exchange Offer,
shall be made by the officers of, or counsel for, the Company at
their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such
questions shall be final and binding.
3. At the written request of the Company or its counsel,
you shall notify tendering holders of Original Notes in the event
of any termination of the Exchange Offer and you will return all
tendered Original Notes to the persons entitled thereto, at the
expense of the Company.
4. Tender of the Original Notes may be made only as set
forth in the Letter of Transmittal and in the section of the
Prospectus captioned “The Exchange Offer.”
Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be
considered to be properly tendered. Letters of Transmittal and
Notices of Guaranteed Delivery shall be recorded by you as to the
date and time of receipt and shall be preserved and retained by
you at the Company’s expense for one year. New Notes are to
be issued in exchange for Original Notes pursuant to the Exchange
Offer only (i) against deposit with you prior to the
Expiration Date or, in the case of a tender in accordance with
the guaranteed delivery procedures outlined in Instruction 1
of the Letter of Transmittal, within three New York Stock
Exchange trading days after the Expiration Date of the Exchange
Offer, together with executed Letters of Transmittal and other
documents required by the Exchange Offer or (ii) in the
event that the holder is a participant in the Depository Trust
Company (“DTC”) system, by the utilization of
DTC’s Automated Tender Offer Program (“ATOP”
) and any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to
the Notes at The Depositary Trust Company (the “Book
Entry Transfer Facility”) within two days after the date
hereof in accordance with SEC Regulation 240.17 Ad.
Any financial institution that is a participant in the Book Entry
Transfer Facility system may, until the Expiration Date, make
book-entry delivery of the Notes by causing the Book Entry
Facility to transfer such Notes into your account in accordance
with the procedure for such transfer established by the Book
Entry Transfer Facility. In every case, however, a Letter of
Transmittal (or a manually executed facsimile thereof), or an
Agent’s Message, properly completed and duly executed, with
any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the
Expiration Date or the guaranteed delivery procedures described
in the Exchange Offer must be complied with.
5. Upon oral or written request of the Company (with
written confirmation of any such oral request thereafter), you
will transmit by telephone, and promptly thereafter confirm in
writing to Bruce E. Robinson or such other persons as the
Company may reasonably request, the aggregate number and
principal amount of each series of Original Notes tendered to you
and the number and principal amount of each series of Original
Notes properly tendered that day. In addition, you will also
inform the aforementioned persons, upon oral request made from
time to time (with written confirmation of such request
thereafter) prior to the Expiration Date, of such information as
they or any of them may reasonable request.
6. Upon the terms and subject to the conditions of the
Exchange Offer, delivery of New Notes will be made by you
promptly after acceptance of the tendered Original Notes. You
will hold all items which are deposited for tender with you after
5:00 p.m. New York City time, on the Expiration Date
pending further instructions from an officer of the Company.
7. If any holder shall report to you that his or her
failure to surrender Original Notes registered in his or her name
is due to the loss or destruction of a certificate or
certificates, you shall request such holder (i) to furnish
to you an affidavit of loss and, if required by the Company, a
bond of indemnity in an amount and evidenced by such certificate
or certificates of a surety, as may be satisfactory to you and
the Company, and (ii) to execute and deliver an agreement to
indemnify the Company and you in such form as is acceptable to
you and the Company. The obligees to be named in each such
indemnity bond shall include the Company and you. You shall
report to the Company the names of all holders who claim that
their Original Notes have been lost or destroyed and the
principal amount of such Original Notes.
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8. As soon as practicable after the Expiration Date, you
shall mail or deliver via the Book Entry Transfer Facility’s
applicable procedures, the New Notes that such holders may be
entitled to receive and you shall arrange for cancellation of the
Original Notes submitted to you or returned by DTC in connection
with ATOP. Such Original Notes shall be forwarded to for
cancellation and retirement as you are instructed by the Company
(or a representative designated by the Company) in writing.
9. For your services as the Exchange Agent hereunder, the
Company shall pay you in accordance with the schedule of fees
attached hereto as Exhibit C. The Company also will
reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys’ fees
not previously paid to you as set forth in Exhibit C) in
connection with your services promptly after submission to the
Company of itemized statements.
10. You are not authorized to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or
other person or to engage or utilize any person to solicit
tenders.
11. As the Exchange Agent hereunder you:
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(a) shall have no duties or obligations other than those
specifically set forth in the section of the Prospectus captioned
“The Exchange Offer,” herein or in the Exhibits
attached hereto or as may be subsequently requested in writing of
you by the Company and agreed to by you in writing with respect
to the Exchange Offer; |
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(b) will be regarded as making no representations and
having no responsibilities as to the validity, accuracy,
sufficiency, value or genuineness of any Original Notes deposited
with you hereunder, any New Notes, and Tender Documents or other
documents prepared by the Company in connection with the
Exchange Offer; |
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(c) shall not be obligated to take any legal action
hereunder which might in your judgment involve any expense or
liability unless you shall have been furnished with an indemnity
reasonably satisfactory to you; |
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(d) may rely on, and shall be fully protected and
indemnified as provided in Section 12 hereof in acting upon,
the written or oral instructions with respect to any matter
relating to your acting as Exchange Agent specifically covered by
this Agreement or supplementing or qualifying any such action of
any officer or agent of such other person or persons as may be
designated or whom you reasonably believe have been designated by
the Company; |
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(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by you in good faith and in
accordance with such advice of such counsel; |
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(f) shall not at any time advise any person as to the
wisdom of the Exchange Offer or as to the market value or decline
or appreciation in market value of any Original Notes or New
Notes; and |
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(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for
your gross negligence, willful misconduct or bad faith. |
12. The Company covenants and agrees to indemnify and hold
harmless Bank One Trust Company, National Association and its
officers, directors, employees, agents and affiliates
(collectively, the “Indemnified Parties” and
each an “Indemnified Party”) against any loss,
liability or reasonable expense of any nature (including
reasonable attorneys’ and other fees and expenses) incurred
without gross negligence, bad faith or willful misconduct on the
part of the Indemnified Party, in connection with the
administration of the duties of the Indemnified Parties hereunder
in accordance with this Agreement; provided, however, such
Indemnified Party shall use its best effort to notify the Company
by letter, or by cable, telex or telecopier confirmed by letter,
of the written assertion of a claim against such Indemnified
Party, or of any action commenced against such Indemnified Party,
promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written
assertion of a claim or
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shall have been served with a summons, or other legal process,
giving information as to the nature and basis of the claim;
provided, however, that failure to so notify the Company shall
not relieve the Company of any liability which it may otherwise
have hereunder except such liability that is a direct result of
such Indemnified Party’s failure to so notify the Company.
The Company shall be entitled to participate at its own expense
in the defense of any such claim or legal action and if the
Company so elects or if the Indemnified Party in such notice to
the Company so directs, the Company shall assume the defense of
any suit brought to enforce any such claim. Notwithstanding
anything to the contrary set forth herein, you shall be entitled
to retain counsel of your choice in any suit and the Company
shall pay the fees, expenses and disbursements of such counsel.
You shall not enter into a settlement or other compromise with
respect to any indemnified loss, liability or expense without the
prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the
Company’s interests.
13. This Agreement and your appointment as the Exchange
Agent shall be construed and enforced in accordance with the laws
of the State of Michigan and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the
successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this
Agreement.
14. The parties hereto hereby irrevocably submit to the
venue and jurisdiction of any Michigan State or federal court
sitting in Wayne County or Oakland County in any action or
proceeding arising out of or relating to this Agreement, and the
parties hereby irrevocably agree that all claims in respect of
such action or proceeding arising out of or relating to this
Agreement, shall be heard and determined in such a Michigan State
or federal court. The parties hereby consent to and grant to any
such court jurisdiction over the persons of such parties and
over the subject matter of any such dispute and agree that
delivery or mailing of any process or other papers in the manner
provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or
supplemented without an express written agreement executed by the
parties hereto. Any inconsistency between this Agreement and the
Prospectus and Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the
latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent.
16. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
17. In case any provision of this Agreement 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.
18. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Sections 9 and 12 shall
survive the termination of this Agreement. Upon any termination
of this Agreement, you shall promptly deliver to the Trustee any
certificates for Original Notes or New Notes, funds or property
then held by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in
writing and shall be deemed to be duly given if delivered or sent
by a nationally recognized overnight courier or by telecopier
(with a copy mailed by registered mail, return receipt
requested), and addressed as follows:
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If to Company: |
PULTE CORPORATION
33 Bloomfield Hills Parkway, Suite 200
Bloomfield Hills, Michigan 48304
Telecopier No.: (248) 433-4529
Attn: John R. Stoller
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and a copy to: |
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Telecopier No.: (313) 465-7381
Attn: David Foltyn
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If to you: |
Bank One Trust Company, National Association
100 East Broad Street
Columbus, Ohio 43271-0181
Telecopier No.:
Attn:
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or such other address or telecopy number as any of the above may
have furnished to the other parties in writing for such purposes.
20. This Letter Agreement and all of the obligations
hereunder shall be assumed by any and all successors and assigns
of the Company.
If the foregoing is in accordance with your understanding, would
you please indicate your agreement by signing and returning the
enclosed copy of this Agreement to the Company.
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Name: |
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Title: |
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Agreed to this
day
of
,
2000 |
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BANK ONE TRUST COMPANY, |
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NATIONAL ASSOCIATION |
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as Exchange Agent |
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EXHIBIT C
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
SCHEDULE OF FEES
I. Exchange Agent Acceptance Fees:
$
Covers review of the Exchange Agent Agreement, the Letter of
Transmittal and other related documentation; establishment of
accounts and systems link with depositories; operational and
administrative charges and time spent in connection with the
review, receipt and processing of Letters of Transmittal, and
Agent’s Messages.
Note: The fees set forth in this schedule are subject to
review of documentation. The fees are also subject to change
should circumstances warrant. Out-of-pocket expenses and
disbursements, including counsel fees, incurred in the
performance of our duties will be added to the billed fees. Fees
for any services not covered in this or related schedules will be
based upon our appraisal of the services rendered.
We may place orders to buy/sell financial instruments with
outside broker-dealers that we select, as well as with our
affiliates. These transactions (for which normal and customary
spreads or other compensation may be earned by such
broker-dealers, including our affiliates, in addition to the
charges quoted above) will be executed on a riskless principal
basis solely for your account(s) and without recourse to us or
our affiliates. If you choose to invest in any mutual fund, our
affiliates may earn investment management fees and other service
fees/ expenses associated with these funds as disclosed in the
mutual fund prospectus provided to you, in addition to the
charges quoted above. Likewise, our affiliates have entered into
agreements with certain mutual funds or their agents to provide
shareholder services to those funds. For providing these
shareholder services, our affiliates are paid a fee by these
mutual funds that calculated on an annual basis does not exceed
25 basis points of the amount of your investment in these
mutual funds. In addition, if you choose to use other services
provided by our affiliates, Corporate Trust or other of our
affiliates may be allocated a portion of the fees earned. We will
provide periodic account statements describing transactions
executed for your account(s). Trade confirms will be available
upon your request at no additional charge. If a transaction
should fail to close for reasons beyond our control, we reserve
the right to charge our acceptance fee plus reimbursement for
legal fees incurred.
Shares of mutual funds are not deposits or obligations of, or
guaranteed by, Bank One Trust Company, National Association or
any of its affiliates and are not insured by the Federal Deposit
Insurance Corporation or any other agency of the
U.S. Government. Investments in the mutual funds involve the
possible loss of principal. Please read the prospectus carefully
before investing.
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