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Exhibit 1.1
PULTE CORPORATION
(A MICHIGAN CORPORATION)
ISSUER
ABACOA HOMES, INC.
AMERICAN TITLE OF THE PALM BEACHES CORP.
AMERICAN TITLE OF THE PALM BEACHES, LTD.
CARR'S GRANT, L.L.C.
DEVTEX LAND, L.P.
DIVOSTA BUILDING CORPORATION
DIVOSTA AND COMPANY, INC.
DIVOSTA HOMES, INC.
FLORIDA BUILDING PRODUCTS, INC.
FLORIDA CLUB HOMES, INC.
HAMMOCK RESERVE DEVELOPMENT COMPANY
HARRISON HILLS, LLC
HOMESITE SOLUTIONS CORPORATION
ISLAND WALK DEVELOPMENT COMPANY
ONE WILLOWBROOK L.L.C.
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 WHITNEY OAKS L.L.C.
PC/BRE WINFIELD L.L.C.
PC/PALM BEACH, INC.
PN I, INC.
PN II, INC.
PULTE DEVELOPMENT CORPORATION
PULTE HOME CORPORATION
PULTE HOME CORPORATION OF THE DELAWARE VALLEY
PULTE HOME CORPORATION OF NEW ENGLAND
PULTE HOMES OF TEXAS, L.P.
PULTE HOMES OF GREATER KANSAS CITY, INC.
PULTE HOMES OF MICHIGAN CORPORATION
PULTE HOMES OF MICHIGAN I L.P.
PULTE HOMES OF MINNESOTA CORPORATION
PULTE HOMES OF OHIO CORPORATION
PULTE HOMES OF SOUTH CAROLINA, INC.
PULTE HOMES TENNESSEE LIMITED PARTNERSHIP
PULTE LAND COMPANY, LLC
PULTE LAND DEVELOPMENT CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE PAYROLL CORPORATION
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PULTE-IN CORP.
RADNOR HOMES, INC.
RIVERWALK COMMERCE ACQUISITION CORP.
RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY, INC.
RN ACQUISITION 2 CORP.
SEAN/CHRISTOPHER HOMES, INC.
VILLAGE WALK DEVELOPMENT COMPANY, INC.
PULTE COMMUNITIES NJ, LIMITED PARTNERSHIP
PULTE HOMES OF NJ, LIMITED PARTNERSHIP
PULTE HOMES OF NEW YORK, INC.
PULTE HOMES OF PA, LIMITED PARTNERSHIP
PULTE MICHIGAN HOLDINGS CORPORATION
PULTE MICHIGAN SERVICES, LLC
WILBEN, LLLP
WIL CORPORATION
SUBSIDIARY GUARANTORS
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PURCHASE AGREEMENT
(SENIOR DEBT SECURITIES)
February 21, 2001
Banc One Capital Markets, Inc.
1 Bank One Plaza
Chicago, IL 60670
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, NC 28255
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
5500 Sears Tower
Chicago, IL 60606
SunTrust Equitable Securities Corporation
303 Peachtree Street, N.E.
Atlanta, GA 30508
Comerica Securities, Inc.
Comerica Tower at Detroit Center
500 Woodward Avenue
Detroit, MI 48226
Ladies and Gentlemen:
Pulte Corporation, a Michigan corporation (the "Company"), confirms its
agreement with Banc One Capital Markets, Inc. ("Banc One"), Banc of America
Securities LLC ("BOA"), Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith, Incorporated, SunTrust Equitable Securities Corporation and Comerica
Securities, Inc. (collectively, the "Underwriters"), with respect to the sale by
the Company and the purchase by the Underwriters, acting severally and not
jointly, of $200,000,000 aggregate principal amount of the Company's 8.125%
Senior Notes due March 1, 2011 (the "Offered Securities"). The Offered
Securities and the Subsidiary Guarantees (as hereinafter defined) are to be
issued pursuant to an indenture dated October 24, 1995, as supplemented by the
fifth supplemental indenture thereto dated February 21, 2001 (together, as
further amended or supplemented, the "Indenture") between the Company as issuer
and the Company's subsidiaries listed on the title page of this Agreement as
guarantors (collectively, the "Subsidiary Guarantors") and Bank One Trust
Company, N.A., as trustee (the "Trustee"), relating to certain of the Company's
debt securities, including the Offered Securities (the "Debt Securities").
Payment of the Offered Securities will be fully and unconditionally guaranteed
(the "Guarantees") by the Subsidiary Guarantors jointly and severally on a
senior basis, subject to each such Guarantee not constituting or resulting in a
violation of any applicable fraudulent conveyance or similar law of any relevant
jurisdiction, in
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which case, the liability of such Subsidiary Guarantor under such Guarantee
shall be reduced to the maximum amount permissible under applicable fraudulent
conveyance or similar law. The Guarantees will be endorsed on each of the
Offered Securities. The Offered Securities, the Guarantees and the Indenture are
more fully described in the Prospectus referred to below.
Prior to the purchase and public offering of the Offered Securities by
the several Underwriters, the Company, the Subsidiary Guarantors and the
Underwriters shall enter into an agreement substantially in the form of Exhibit
A hereto (the "Pricing Agreement"). The Pricing Agreement may take the form of
an exchange of any standard form of written telecommunication between the
Company and the Underwriters and shall specify such applicable information as is
indicated in Exhibit A hereto. The offering of the Offered Securities will be
governed by this Agreement, as supplemented by the Pricing Agreement. From and
after the date of the execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to incorporate the Pricing Agreement.
The Company and the Subsidiary Guarantors have prepared and filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333-54978) for the registration of Debt Securities,
including the Offered Securities, the Guarantees and other securities of the
Company under the Securities Act of 1933, as amended (the "1933 Act"), including
(i) a basic preliminary prospectus relating to the Debt Securities, the
Guarantees and other securities of the Company which may be offered from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), and (ii) a preliminary
prospectus supplement relating to the Offered Securities and the Guarantees, and
has filed such amendments thereto, if any, and such amended preliminary
prospectuses and preliminary prospectus supplements, if any, as may have been
required to the date hereof, and will file such additional amendments thereto
and such amended preliminary prospectuses and preliminary prospectus supplements
as may hereafter be required. Such registration statement has become effective
under the 1933 Act and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement,
as amended at the time it became effective (including all documents filed with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein, and all information, if
any, deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations) is hereinafter referred to as the "Registration Statement." As
provided in Section 3(a), a final prospectus supplement reflecting the terms of
the Offered Securities, the terms of the offering thereof and the other matters
set forth therein will be prepared and filed pursuant to Rule 424 of the 1933
Act regulations. Such final prospectus supplement, in the form first filed with
the Commission after the date hereof pursuant to Rule 424, is hereinafter
referred to as the "Prospectus Supplement." The basic prospectus included in the
Registration Statement relating to the Debt Securities, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus," except that, if any
revised prospectus shall be provided to the Underwriters for use in connection
with the offering of the Offered Securities which differs from the basic
prospectus on file with the Commission at the time the Registration Statement
was declared effective (as supplemented by the Prospectus Supplement), the term
"Prospectus" shall refer to such prospectus (in each case including all
documents filed by the Company with the Commission pursuant to the 1934 Act that
are incorporated by reference therein and all information, if any, deemed to be
a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations). For
purposes of this Agreement, all
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references to the Registration Statement, any preliminary prospectus, the
Prospectus, or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this
Agreement to financial statements and schedules and other information which are
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to include
all such financial statements and other information which are incorporated by
reference in, or deemed to be a part of, the Registration Statement or the
Prospectus.
The Company and the Subsidiary Guarantors understand that the
Underwriters propose to make a public offering of the Offered Securities as soon
as they deem advisable after the Pricing Agreement has been executed and
delivered.
Section 1. Representations and Warranties.
(a) The Company and each of the Subsidiary Guarantors, jointly and
severally, represents and warrants to each Underwriter as of the date hereof, as
of the date of the Pricing Agreement (such latter date being hereinafter
referred to as the "Representation Date") and as of the Closing Time referred to
in Section 2 hereof as follows:
(i) The Company and each Subsidiary Guarantor meet the
requirements for use of Form S-3 under the 1933 Act. At the time the
Registration Statement became effective, the Registration Statement
complied, and at the Representation Date, the Registration Statement
will comply, in all material respects with the requirements of the 1933
Act, the 1933 Act Regulations, the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"). The Registration Statement did not, at the time it
became effective, and at each time thereafter at which any amendment to
the Registration Statement becomes effective and as of the
Representation Date, 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, as of the date hereof does not, and at the Representation
Date (unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriters by the Company for use in connection
with the offering of the Offered Securities which differs from the
Prospectus on file at the Commission at the time the Registration
Statement becomes effective, in which case at the time it is first
provided to the Underwriters for such use) and at the Closing Time,
will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Banc One expressly for
use in the Registration Statement or Prospectus. No stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
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(ii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, including all documents referred to
under the caption "Where You Can Find More Information" and all
information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Time, 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, in the light of the circumstances under which they
were made, not misleading.
(iii) Ernst & Young LLP, the accountants who certified the
consolidated financial statements of the Company, which include the
Subsidiary Guarantors, and supporting schedule included in and/or
incorporated by reference in the Registration Statement, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries as at the dates indicated, and the
consolidated results of the operations of the Company and its
subsidiaries, and the consolidated cash flows of the Company and its
subsidiaries, respectively, for the periods specified. Said
consolidated financial statements have been prepared in conformity with
the 1933 Act and the 1933 Act Regulations and generally accepted
accounting principles applied on a consistent basis throughout the
periods involved. The supporting schedule included or incorporated by
reference in the Registration Statement presents fairly the information
required to be stated therein. The ratios of earnings to fixed charges
for the Company included in the Prospectus under the captions
"Historical Selected Consolidated Financial Information" and "Summary
Selected Consolidated Financial Information" and in Exhibit 12 to the
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. The selected financial data
included or incorporated by reference in the Prospectus present fairly
in all material respects the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statement.
(v) The Prospectus contains certain financial information
relating to the Subsidiary Guarantors: for the quarter ended December
31, 2000 and the year ended December 31, 2000 (derived from the press
release dated January 25, 2001 which is incorporated by reference into
and included in the Prospectus on Form 8-K filed February 12, 2001), in
Notes 3 and 7 of the Notes to the unaudited condensed Consolidated
Financial Statements of Pulte Corporation (as derived from the
Company's Quarterly Reports on Form 10-Q for the quarters ended March
31, 2000, June 30, 2000 and September 30, 2000 which are incorporated
by reference into and included in the Prospectus), and Notes 1 and 12
of the Notes to the Consolidated Financial Statements of
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the Company (as derived from the Company's Annual Report on Form 10-K
for the year ended December 31, 1999 which is incorporated by reference
into and included in the Prospectus) (the "Subsidiary Guarantor Segment
Financial Information"). The Subsidiary Guarantor Segment Financial
Information (A) is based upon the books and records of the Subsidiary
Guarantors, (B) is a fair and accurate presentation in all material
respects of the Subsidiary Guarantors' financial condition and
operations and does not contain an untrue statement of a material fact
or omit to state a material fact where omission would make the
information therein misleading in any material respect, (C) has been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except
for the inclusion therein of Pulte Mortgage Corporation as an
investment on the equity method of accounting as stated therein, and
(D) conforms to and is in compliance with the requirements of Rule 3-10
of Regulation S-X and has been included in the Prospectus in accordance
with Rule 3-10, and (E) no financial information relating to other
subsidiaries or entities that are not Subsidiary Guarantors is included
therein (except that Pulte Mortgage Corporation is reflected therein as
an investment on the equity method of accounting of Pulte Home
Corporation on the balance sheet included in the Subsidiary Guarantor
Segment Financial Information as stated therein).
(vi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular dividends on the Common Stock in
amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Michigan with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Pricing Agreement, the Indenture and the Offered
Securities; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(viii) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties
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and to conduct its business as described in the Prospectus and, in the
case of the Subsidiary Guarantors, to enter into and perform its
obligations under this Agreement, the Pricing Agreement, the Indenture
and the Guarantees, and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; other than as disclosed in the Prospectus and except
for pledges of stock of certain non-Subsidiary Guarantor limited
purpose subsidiaries of the Company, all of the issued and outstanding
capital stock of each such subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(ix) The authorized, issued and outstanding capital stock of
the Company is set forth in the Prospectus under the captions
"Description of Capital Stock" and "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements,
employee benefit plans or the exercise of convertible securities
referred to in the Prospectus); and the shares of issued and
outstanding Common Stock have been duly authorized and validly issued
and are fully paid and non-assessable.
(x) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its subsidiaries is
subject other than such defaults which, in the aggregate, would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole; and the execution, delivery and performance of this
Agreement, the Pricing Agreement, the Indenture, the Offered Securities
and, in the case of the Subsidiary Guarantors, the Guarantees, and the
consummation of the transactions contemplated herein and therein and
compliance by each of the Company and the Subsidiary Guarantors with
its obligations hereunder and thereunder have been duly authorized by
all necessary corporate action and will not conflict with or constitute
a breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to (A) any contract or
agreement in respect of Indebtedness (as defined in the Indenture) of
the Company or any Subsidiary Guarantor or (B) any indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be
bound which is included as an exhibit to the Registration Statement or
any document filed with the Commission which is incorporated in the
Registration Statement by reference, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any of the Subsidiary Guarantors or any applicable law, administrative
regulation or administrative or court decree.
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(xi) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors which would reasonably be expected to
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(xii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or any of its subsidiaries, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which would reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or which would
reasonably be expected to materially and adversely affect the
properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material; none of the Company, its
subsidiaries or any of its or their assets or properties is in
violation of or subject to any applicable federal, state or local
environmental law, statute, regulation, rule, order or decree under
which the Company or any of its subsidiaries or their assets or
properties are liable for any liabilities relating to environmental
regulations including environmental remediation, environmental
contamination prevention or environmental monitoring which is required
to be disclosed in the Prospectus under the 1933 Act or the 1933 Act
Regulations; and there are no contracts or documents of the Company or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xiii) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "patent and proprietary rights") presently employed by
them in connection with the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any patent or proprietary rights, or of any
facts which would render any patent and proprietary rights invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Subsidiary Guarantors
considered as one enterprise.
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(xiv) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Offered Securities hereunder, except
such as may be required under the 1933 Act or the 1933 Act Regulations
or state securities laws and the qualification of the Indenture under
the 1939 Act.
(xv) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise or the Subsidiary Guarantors considered as one
enterprise.
(xvi) The Company and each of its subsidiaries are insured
against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; neither the
Company nor any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor any such subsidiary
has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, except as
described in the Registration Statement and the Prospectus.
(xvii) This Agreement has been, and, at the Representation Date,
the Pricing Agreement will have been, duly executed and delivered by
the Company and the Subsidiary Guarantors and each constitutes the
valid and binding agreement of the Company and the Subsidiary
Guarantors in accordance with its terms, except as the enforcement
thereof may be limited by fraudulent conveyance, bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles.
(xviii) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xix) The Indenture has been duly authorized by the Company and
the Subsidiary Guarantors and, at the Closing Time, will have been duly
qualified under the 1939 Act and duly executed and delivered by the
Company and the Subsidiary Guarantors and will constitute a valid and
binding agreement of the Company and the Subsidiary Guarantors,
enforceable against the Company and the Subsidiary Guarantors in
accordance with its terms, except as the enforcement thereof may be
limited by fraudulent conveyance, bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditor's rights generally or by general equitable
principles.
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(xx) The Offered Securities have been duly authorized and, at
the Closing Time, will have been duly executed and issued by the
Company and, when authenticated in the manner provided for in the
Indenture and delivered in accordance with this Agreement against
payment of the purchase price therefor specified in the Pricing
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms
except as the enforcement thereof may be limited by fraudulent
conveyance, bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles, and will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(xxi) The Guarantees have been duly authorized by the
Subsidiary Guarantors, and when such Guarantees are executed and
endorsed upon the Offered Securities and delivered in accordance with
the terms of the Indenture, such Guarantees will constitute valid and
binding obligations of the Subsidiary Guarantors entitled to the
benefits of the Indenture, enforceable against the Subsidiary
Guarantors in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement considered in a
proceeding in equity or at law); and the Guarantees conform in all
material respects to the description thereof in the Prospectus.
(xxii) The Offered Securities, the Guarantees and the Indenture
will conform in all material respects to the respective statements
relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference,
as the case may be, as exhibits to the Registration Statement.
(xxiii) The Offered Securities rank and will rank on a parity
with all unsecured and unsubordinated Indebtedness of the Company that
is outstanding on the date hereof or that may be incurred hereafter,
including the Senior Indebtedness (as defined in the indenture, dated
as of October 24, 1995, among the Company, the Subsidiary Guarantors
and the First National Bank of Chicago, a national banking association,
as trustee relating to the Company's subordinated indebtedness (the
"Subordinated Indenture")), and senior to all unsecured and
subordinated Indebtedness of the Company that is outstanding on the
date hereof or that may be incurred hereafter, including the
Subordinated Indebtedness (as defined in the Subordinated Indenture).
The Guarantees rank and will rank on a parity with all unsecured and
unsubordinated Indebtedness of the Subsidiary Guarantors that is
outstanding on the date hereof or that may be incurred hereafter,
including the Guarantor Senior Indebtedness (as defined in the
Subordinated Indenture, but excluding the Guarantor Senior Subordinated
Indebtedness (as defined in the Subordinated Indenture)), and senior to
all senior subordinated and subordinated Indebtedness of the Subsidiary
Guarantors that is outstanding on the date hereof or that may be
incurred hereafter, including Guarantor Subordinated Indebtedness (as
defined in the Subordinated Indenture) and Guarantor Senior
Subordinated Indebtedness.
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(xxiv) Neither the Company nor any of the Subsidiary Guarantors
is, or will be after the consummation of the offering of the Offered
Securities under the terms hereof and the application of the net
proceeds received therefrom in accordance with the information
contained in the Prospectus under the caption "Use of Proceeds," an
"investment company" as that term is defined in the Investment Company
Act of 1940, as amended, or subject to regulation under such act.
(xxv) Pulte Home Corporation and all of Pulte Home
Corporation's direct or indirect subsidiaries, which individually or in
the aggregate account for 2% or more of the Company's total revenues in
respect of its home building business, are each Subsidiary Guarantors.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, at the price set forth in
the Pricing Agreement, the aggregate principal amount of Offered Securities set
forth in Schedule A opposite the name of such Underwriter (except as otherwise
provided in the Pricing Agreement).
(1) If the Company has elected not to rely upon Rule 430A
under the 1933 Act Regulations, the initial public offering price and
the purchase price to be paid by the several Underwriters for the
Offered Securities, and the interest rate on the Offered Securities,
have each been determined and set forth in the Pricing Agreement, dated
the date hereof, and the Prospectus Supplement will be filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations in
accordance with Section 3(a) hereof.
(2) If the Company has elected to rely upon Rule 430A under
the 1933 Act Regulations, the purchase price to be paid by the several
Underwriters for the Offered Securities shall be an amount equal to the
initial public offering price, less an amount to be determined by
agreement among the Underwriters and the Company. The initial public
offering price of the Offered Securities shall be a fixed price to be
determined by agreement between the Underwriters and the Company. The
interest rate on the Offered Securities likewise shall be determined by
agreement between the Company and the Underwriters. The initial public
offering price, the interest rate and the purchase price, when so
determined, shall be set forth in the Pricing Agreement. In the event
that such prices and interest rate have not been agreed upon and the
Pricing Agreement has not been executed and delivered by the parties
thereto by the close of business on the fourth business day following
the date of this Agreement, this Agreement shall terminate forthwith,
without liability of any party to any other party, unless otherwise
agreed to by the Company and the Underwriters.
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(b) Payment of the purchase price for, and delivery of certificates
for, the Offered Securities shall be made at the office of Brown & Wood LLP, One
World Trade Center, New York, New York 10048, or at such other place as shall be
agreed upon by the Underwriters and the Company, at 9:00 A.M. on the third
business day (unless postponed in accordance with the provisions of Section 10)
following the date of execution of the Pricing Agreement, or such other time not
later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Time"). Notwithstanding the foregoing, delivery of
the Offered Securities at the Closing Time may be made through the facilities of
The Depository Trust Company with the agreement of the Underwriters and the
Company. Payment shall be made to the Company by wire transfer in same day funds
to the account of the Company specified in writing to the Company and the
Underwriters, against delivery to the Underwriters of certificates for the
Offered Securities to be purchased by them. Certificates for the Offered
Securities shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two business days before the
Closing Time. Any of the Underwriters may (but shall not be obligated to) make
payment of the purchase price for the Offered Securities to be purchased by an
Underwriter whose check has not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Offered Securities will be made available for examination
and packaging by the Underwriters not later than 10:00 A.M. on the last business
day prior to the Closing Time at the offices of Brown & Wood LLP, One World
Trade Center, New York, New York 10048.
Section 3. Covenants of the Company.
The Company and the Subsidiary Guarantors, jointly and severally,
covenant with each Underwriter as follows:
(a) As promptly as practicable following execution of the Pricing
Agreement, the Company and the Subsidiary Guarantors will prepare a Prospectus
Supplement that complies with the 1933 Act and the 1933 Act Regulations and that
sets forth the initial public offering price of the Offered Securities, the
purchase price to be paid by the Underwriters for the Offered Securities, the
interest rate on the Offered Securities, the names of the Underwriters acting as
co-managers in connection with the offering, any selling concession and
reallowance, and such other information as the Underwriters, the Company and the
Subsidiary Guarantors deem appropriate in connection with the offering of the
Offered Securities. The Company and the Subsidiary Guarantors will promptly, but
in no event later than the second business day following the execution of the
Pricing Agreement, transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish
to the Underwriters as many copies of the Prospectus and the Prospectus
Supplement as the Underwriters may reasonably request.
(b) The Company will notify the Underwriters immediately, and confirm
the notice in writing with respect to the Offered Securities, (i) of the
effectiveness of the Registration Statement and any amendment thereto (including
any post-effective amendment), (ii) of the transmittal to the Commission for
filing of any supplement to the Prospectus or any document to be filed pursuant
to the 1934 Act which will be incorporated by reference in the Prospectus, (iii)
of the receipt of any comments from the Commission with respect to the
Registration Statement,
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the Prospectus, or any document incorporated by reference therein, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company and the Subsidiary Guarantors will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company and the Subsidiary Guarantors will give the
Underwriters notice of their intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or any amendment
or supplement to the Prospectus (including any revised prospectus which the
Company and the Subsidiary Guarantors propose for use by the Underwriters in
connection with the offering of the Offered Securities which differs from the
prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations), whether pursuant to
the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriters with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the Underwriters or
counsel for the Underwriters shall reasonably object.
(d) The Company and the Subsidiary Guarantors will deliver to the
Underwriters as many signed copies of the Registration Statement as originally
filed and of each amendment thereto with respect to the Offered Securities
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, as the Underwriters
may reasonably request and will also deliver to the Underwriters a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto with respect to the Offered Securities (without exhibits) for each of
the Underwriters.
(e) The Company and the Subsidiary Guarantors will furnish to each
Underwriter, from time to time during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
(f) The Company and each Subsidiary Guarantor will comply with the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations
and the 1939 Act and the 1939 Act Regulations so as to permit the completion of
the offering of the Offered Securities as contemplated in this Agreement and in
the Prospectus. If any event shall occur as a result of which it is necessary,
in the opinion of counsel for the Company or counsel for the Underwriters, to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company and the Subsidiary Guarantors will
forthwith amend or supplement the Prospectus, subject to Section 3(c) hereof, so
that, as so amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the
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statements therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Company and the Subsidiary
Guarantors will furnish to the Underwriters a reasonable number of copies of
such amendment or supplement.
(g) The Company and the Subsidiary Guarantors will each endeavor, in
cooperation with the Underwriters, to qualify the Offered Securities and the
Guarantees for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriters may
designate; provided, however, that the Company and the Subsidiary Guarantors
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which the Company or the Subsidiary Guarantors are not so qualified. In each
jurisdiction in which the Offered Securities and the Guarantees are being
offered, the Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement. The Company and each Subsidiary Guarantor will also supply each
Underwriter with such information as is necessary for the determination of the
legality of the Offered Securities and the Guarantees for investment under the
laws of such jurisdictions as the Underwriters may reasonably request.
(h) The Company and the Subsidiary Guarantors will make generally
available to its security holders as soon as practicable after the close of the
period covered thereby, but in no event later than required by Section 11(a) of
the 1933 Act and Rule 158 under the 1933 Act Regulations, an earnings statement
of the Company (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a twelve month period beginning not later than the
first day of the Company's fiscal quarter next following the "effective date"
(as defined in said Rule 158) of the Registration Statement. Such earnings
statements shall contain the Subsidiary Guarantor Segment Financial Information
in substantially the form as contained in the Prospectus, subject to the
requirements of the Company and the Subsidiary Guarantors to comply with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations. The Company and the Subsidiary Guarantors shall each use
its best efforts to insure that the Subsidiary Guarantors do not become subject
to the periodic report filing requirements promulgated under Sections 13 and
15(d) of the 1934 Act with respect to the Offered Securities.
(i) The Company will use the net proceeds received by it from the sale
of the Offered Securities in the manner specified in the Prospectus under "Use
of Proceeds".
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(k) For a period of three years after the Closing Time, the Company
will furnish to the Underwriters copies of all reports and communications
delivered to the Company's stockholders or to holders of the Offered Securities
as a class and will also furnish copies of all reports (excluding exhibits)
filed with the Commission on forms 8-K, 10-Q and 10-K, and all other reports and
information furnished to its stockholders generally, not later than the time
such reports are first furnished to stockholders generally.
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(l) During a period of 30 days from the date of the Prospectus, the
Company will not, without the Underwriters' prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Offered Securities or securities similar to the Offered
Securities (except for the Offered Securities sold to the Underwriters pursuant
to this Agreement), except as is otherwise provided in the Pricing Agreement.
Section 4. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing of this Agreement, the Indenture and the Pricing Agreement, (iii)
the preparation, issuance and delivery of the certificates for the Offered
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
counsel and accountants, (v) the qualification of the Offered Securities and the
Guarantees under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any Legal Investment Survey, (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any Legal Investment Survey, (viii) the qualification of the Offered Securities
for trading in the form of global securities through the facilities of The
Depository Trust Company or any other entity registered as a clearing agency
pursuant to the provisions of Section 17A of the 1934 Act, or other applicable
statute or regulation, (ix) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Offered Securities; and (x) any fees payable in connection
with the rating of the Offered Securities, (xi) any fees or expenses incurred in
connection with any filing for review of the offering of the Offered Securities
and the Guarantees with the National Association of Securities Dealers, Inc.,
including the reasonable fees and disbursements of counsel therewith, (xii) any
fees payable, including the reasonable fees and disbursements of counsel, in
connection with the listing of the Offered Securities for trading on the New
York Stock Exchange.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations.
The obligations of the Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company herein contained,
to the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) At the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. If the Company
has elected to rely upon Rule 430A
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of the 1933 Act Regulations, the price of and the interest rate on the Offered
Securities and any price-related information previously omitted from the
effective Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period and prior to the Closing Time the
Company shall have provided evidence satisfactory to the Underwriters of such
timely filing, or a post-effective amendment providing such information shall
have been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations.
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Honigman Miller Schwartz and Cohn LLP, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters,
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 Michigan.
(ii) Each of the Company and the Subsidiary Guarantors has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and to enter into and perform its obligations under this Agreement, the
Pricing Agreement, the Indenture, the Offered Securities and, in the
case of the Subsidiary Guarantors, the Guarantees.
(iii) To the best of their knowledge and information, the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required except in such jurisdictions in which the
failure to so qualify would not have a material adverse effect on the
business of the Company and its subsidiaries taken as a whole or on the
enforceability of this Agreement, the Indenture, the Offered Securities
or the Guarantees.
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus), and the shares of issued and
outstanding Common Stock have been duly authorized and validly issued
and are fully paid and non-assessable.
(v) The issuance of the Offered Securities is not subject to
preemptive or other similar rights arising by operation of law, under
the charter or by-laws of the Company or, to their actual knowledge and
information, otherwise.
(vi) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and, to the best of
their knowledge and information, is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is
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required except in such jurisdictions in which the failure to so
qualify would not have a material adverse effect on the business of the
Company and its subsidiaries taken as a whole or on the enforceability
of this Agreement, the Indenture, the Offered Securities or the
Guarantees; all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to the best of their knowledge and
information, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity other than as disclosed in the Prospectus
and except for pledges of stock of certain non-Subsidiary Guarantor
limited purpose subsidiaries of the Company.
(vii) This Agreement and the Pricing Agreement have each been
duly authorized, executed and delivered by the Company and the
Subsidiary Guarantors and each constitutes the valid and binding
agreement of the Company and the Subsidiary Guarantors in accordance
with its terms, except as the enforcement thereof may be limited by
fraudulent conveyance, bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles.
(viii) The Registration Statement is effective under the 1933
Act and, to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) At the time the Registration Statement became effective
and at the Representation Date, the Registration Statement (other than
the financial statements and supporting schedules included therein, as
to which no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(x) To the best of their knowledge and information, there are
no legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than
those disclosed or incorporated by reference therein, and all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or to which any of their property is subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are, considered
in the aggregate, not material.
(xi) The information in the Prospectus under "Description of
Senior Notes," "Description of Debt Securities," "Description of Other
Indebtedness" and "Certain Provisions of Michigan Business Corporation
Act," to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct in all material respects.
(xii) To the best of their knowledge and information, there are
no contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as
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exhibits thereto, the descriptions thereof or references thereto are
correct in all material respects, and to the best of their knowledge no
default exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument so
described, referred to, or filed or incorporated by reference.
(xiii) No authorization, approval, consent or order of any court
or governmental authority or agency is required in connection with the
offering, issuance or sale of the Offered Securities to the
Underwriters, except such as may be required under the 1933 Act or the
1933 Act Regulations or state securities law and the qualification of
the Indenture under the 1939 Act; and, to the best of their knowledge
and information, the execution, delivery and performance of this
Agreement, the Pricing Agreement, the Indenture, the Offered Securities
and, in the case of the Subsidiary Guarantors, the Guarantees, and the
consummation of the transactions contemplated herein and therein and
compliance by each of the Company and the Subsidiary Guarantors with
its obligations hereunder and thereunder will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
except for such conflicts, breaches, defaults, liens, charges or
encumbrances which are not material to the operations of the Company
and its subsidiaries taken as a whole or to the execution, delivery and
performance of this Agreement, the Indenture, the Offered Securities
and the Guarantees or the consummation of the transactions contemplated
herein and therein, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company, or any applicable
law, administrative regulation or administrative or court decree.
(xiv) To the best of their knowledge and information, there are
no persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xv) The Indenture has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors and (assuming
the due authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of the Company and the
Subsidiary Guarantors in accordance with its terms, except as the
enforcement thereof may be limited by fraudulent conveyance,
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.
(xvi) The Offered Securities are in the form contemplated by
the Indenture, have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in the manner
provided in the Indenture (assuming the due authorization, execution
and delivery of the Indenture by the Trustee) and delivered against
payment of the purchase price therefor specified in the Pricing
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the
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Company in accordance with their terms, except as the enforcement
therefor may be limited by fraudulent conveyance, bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditor's rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture.
(xvii) The Guarantees are in the form contemplated by the
Indenture, have been duly authorized by the Subsidiary Guarantors and,
when endorsed on the Offered Securities which have been executed by the
Company and authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and delivery of
the Indenture by the Trustee and the Company) and delivered against
payment of the purchase price therefor specified in the Pricing
Agreement, will constitute valid and binding obligations of the
Subsidiary Guarantors, enforceable against the Subsidiary Guarantors in
accordance with their terms, except as the enforcement therefor may be
limited by fraudulent conveyance, bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditor's rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture.
(xviii) The Indenture has been qualified under the 1939 Act.
(xix) The Offered Securities, the Guarantees and the Indenture
conform in all material respects to the descriptions thereof contained
in the Prospectus.
(xx) The Offered Securities rank and will rank on a parity
with all unsecured and unsubordinated Indebtedness of the Company that
is outstanding on the date hereof or that may be incurred hereafter,
including the Senior Indebtedness (as defined in the Subordinated
Indenture), and senior to all unsecured and subordinated Indebtedness
of the Company that is outstanding on the date hereof or that may be
incurred hereafter, including the Subordinated Indebtedness (as defined
in the Subordinated Indenture).
(xxi) The Guarantees rank and will rank on a parity with all
unsecured and unsubordinated Indebtedness of the Subsidiary Guarantors
that is outstanding on the date hereof or that may be incurred
hereafter, including the Guarantor Senior Indebtedness (as defined in
the Subordinated Indenture, but excluding Guarantor Senior Subordinated
Indebtedness), and senior to all senior subordinated and subordinated
Indebtedness of the Subsidiary Guarantors that is outstanding on the
date hereof or that may be incurred hereafter, including Guarantor
Senior Subordinated Indebtedness (as defined in the Subordinated
Indenture) and Guarantor Subordinated Indebtedness (as defined in the
Subordinated Indenture).
(xxii) Each document filed pursuant to the 1934 Act (other than
the financial statements and supporting schedule and other financial
data included or incorporated by reference therein, as to which no
opinion need be rendered) and incorporated or deemed to be incorporated
by reference (including the information, if any, deemed incorporated by
reference pursuant to Rule 430A under the 1933 Act Regulations) in the
Prospectus complied when so filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations.
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(2) The favorable opinion, dated as of the Closing Time, of
Brown & Wood LLP, counsel for the Underwriters, with respect to the
matters set forth in (i), (vii) to (viii), (ix) and (xv) to (xix),
inclusive, of subsection (b)(1) of this Section.
(3) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, Honigman Miller Schwartz and
Cohn LLP and Brown & Wood LLP shall each additionally state that
nothing has come to their attention that would lead them to believe
that the Registration Statement (except for financial statements and
schedules and other financial data included or incorporated by
reference therein, as to which counsel need make no statement), at the
time it became effective or at the Representation Date, 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 the Prospectus (except for financial
statements and schedules and other financial data included or
incorporated by reference therein and that part of the Registration
Statement which constitutes the Trustee's Statement of Eligibility and
Qualification under the 1939 Act (Form T-1), as to which counsel need
make no statement), at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of
the Offered Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective, in
which case at the time it is first provided to the Underwriters for
such use) or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. In giving
its opinions, Brown & Wood LLP may rely as to matters of Michigan law
upon the opinion of Honigman Miller Schwartz and Cohn LLP, which
opinion shall be in form and substance reasonably satisfactory to
counsel for the Underwriters.
(c) At the Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Underwriters
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of the Closing Time, to the effect that (i) there has been no such
material adverse change, or any development involving a prospective material
adverse change, (ii) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
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(d) At the time of the execution of this Agreement, the Underwriters
shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Underwriters, to the effect that (i) they are
independent auditors with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion
that the consolidated financial statements and supporting schedule, which
include the Subsidiary Guarantor Segment Financial Information, included or
incorporated by reference in the Registration Statement and covered by their
opinions therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations; (iii)
based upon limited procedures set forth in detail in such letter, nothing has
come to their attention which causes them to believe that (A) the unaudited
consolidated financial statements of the Company and its subsidiaries, which
include the Subsidiary Guarantor Segment Financial Information, incorporated by
reference in the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations or are not presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited consolidated financial statements incorporated by reference in the
Registration Statement, (B) the unaudited amounts of revenues, net income and
net income per share set forth under "Selected Consolidated Financial
Information" in the Prospectus were not determined on a basis substantially
consistent with that used in determining the corresponding amounts in the
audited financial statements incorporated by reference in the Registration
Statement, or (C) at a specified date not more than three days prior to the date
of this Agreement, there has been any change in the capital stock of the Company
or any increase in the consolidated long term debt of the Company and its
subsidiaries or any decrease in consolidated stockholders' equity as compared
with the amounts shown in the September 30, 2000, balance sheet included in the
Registration Statement or, during the period from October 1, 2000, to a
specified date not more than three days prior to the date of this Agreement,
there were any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, net income or net income per share of
the Company and its subsidiaries, except in all instances for changes, increases
or decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the examination referred to in
their opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Underwriters, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(e) At the Closing Time the Underwriters shall have received from
Ernst & Young LLP a letter, dated as of the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section, except that the specified date referred to shall be a date
not more than three days prior to the Closing Time and, if the Company has
elected to rely on Rule 430A of the 1933 Act Regulations, to the further effect
that they have carried out procedures as specified in clause (iv) of subsection
(d) of this Section with respect to certain amounts, percentages and financial
information specified by the Underwriters and deemed to be a part of the
Registration Statement pursuant to Rule 430(A)(b) and have found such amounts,
percentages and financial information to be in agreement with the records
specified in such clause (iv).
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(f) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Offered Securities as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Offered Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(g) At the Closing Time, the Offered Securities shall be rated at least
Baa3 by Moody's Investor's Service Inc. and BBB by Standard & Poor's Ratings
Services, and the Company shall have delivered to the Underwriters a letter,
dated the Closing Time, from each such rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Offered Securities have
such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Offered Securities or any
other debt securities of the Company or any Subsidiary Guarantor by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
securities rating agency shall have publicly announced that it has under watch,
surveillance or review, with possible negative implications, its rating of the
Offered Securities or any other debt securities of the Company or any Subsidiary
Guarantor.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Company and each Subsidiary
Guarantor, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed
to be part of the Registration Statement pursuant to Rule 430A(b) of
the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
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(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by Banc One),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Banc One expressly for use in the Registration Statement (or
any amendment thereto), including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the 1933 Act Regulations, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the information deemed to be
part of the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Banc
One expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Banc One, and, in
the case of parties indemnified pursuant to Section 6(b)
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above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Section 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the Debt
Securities pursuant to the applicable Pricing Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Debt
Securities pursuant to the applicable Pricing Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
such Debt Securities (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case
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as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of such Debt Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters 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 Section 7 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 which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate principal amount of Offered Securities set forth
opposite their respective names in the Pricing Agreement, and not joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Offered Securities to the Underwriters.
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Section 9. Termination of Agreement.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change,
or any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in the judgment of the Underwriters, impracticable to market the Offered
Securities or to enforce contracts for the sale of the Offered Securities, or
(iii) if trading in the Common Stock has been suspended by the Commission, or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York or Michigan authorities, or (iv) there shall have occurred a downgrading in
the rating assigned to the Offered Securities or any other debt securities of
the Company or any Subsidiary Guarantor by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act or any such securities rating
agency shall have publicly announced that it has under watch, surveillance or
review, with possible negative implications, its rating of the Offered
Securities or any debt securities of the Company or any Subsidiary Guarantor.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. Default By One or More of The Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the securities
which it or they are obligated to purchase under this Agreement and the Pricing
Agreement (the "Defaulted Securities"), the remaining Underwriter or
Underwriters, as the case may be, shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements to purchase all, but not less
than all, of the Defaulted Securities upon the terms herein set forth; if,
however, the non-defaulting Underwriter or Underwriters, as the case may be,
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Securities, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Securities, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
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In the event of any such default which does not result in a termination
of this Agreement, either the non-defaulting Underwriter or Underwriters, as the
case may be, or the Company shall have the right to postpone the Closing Time
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters at Banc One Capital Markets,
Inc., 1 Bank One Plaza, Suite IL1-0595, Chicago, IL 60670, attention of
Investment-Grade Securities; notices to the Company or the Subsidiary Guarantors
shall be directed to it at 33 Bloomfield Hills Parkway, Suite 200, Bloomfield
Hills, Michigan, 48304, attention of Bruce Robinson, Vice President and
Treasurer.
Section 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters and the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters and the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day refer to New
York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters, the Company and the Subsidiary Guarantors in
accordance with its terms.
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Very truly yours,
PULTE CORPORATION
By: /s/ Bruce E. Robinson
-------------------------------
Title: Vice President
Guarantors
ABACOA HOMES, INC.
AMERICAN TITLE OF THE PALM BEACHES
CORP.
AMERICAN TITLE OF THE PALM BEACHES,
LTD.
CARR'S GRANT, L.L.C.
DEVTEX LAND, L.P.
DIVOSTA BUILDING CORPORATION
DIVOSTA AND COMPANY, INC.
DIVOSTA HOMES, INC.
FLORIDA BUILDING PRODUCTS, INC.
FLORIDA CLUB HOMES, INC.
HAMMOCK RESERVE DEVELOPMENT
COMPANY
HARRISON HILLS, LLC
HOMESITE SOLUTIONS CORPORATION
ISLAND WALK DEVELOPMENT COMPANY
ONE WILLOWBROOK L.L.C.
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 WHITNEY OAKS L.L.C.
PC/BRE WINFIELD L.L.C.
PC/PALM BEACH, INC.
PN I, INC.
PN II, INC.
PULTE DEVELOPMENT CORPORATION
PULTE HOME CORPORATION
PULTE HOME CORPORATION OF
THE DELAWARE VALLEY
PULTE HOME CORPORATION OF
NEW ENGLAND
PULTE HOMES OF TEXAS, L.P.
PULTE HOMES OF GREATER KANSAS
CITY, INC.
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PULTE HOMES OF MICHIGAN
CORPORATION
PULTE HOMES OF MICHIGAN I L.P.
PULTE HOMES OF MINNESOTA
CORPORATION
PULTE HOMES OF OHIO CORPORATION
PULTE HOMES OF SOUTH CAROLINA, INC.
PULTE HOMES TENNESSEE LIMITED
PARTNERSHIP
PULTE LAND COMPANY, LLC
PULTE LAND DEVELOPMENT
CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE PAYROLL CORPORATION
PULTE-IN CORP.
RADNOR HOMES, INC.
RIVERWALK COMMERCE ACQUISITION
CORP.
RIVERWALK OF THE PALM BEACHES
DEVELOPMENT COMPANY, INC.
RN ACQUISITION 2 CORP.
SEAN/CHRISTOPHER HOMES, INC.
VILLAGE WALK DEVELOPMENT
COMPANY, INC.
PULTE COMMUNITIES NJ, LIMITED
PARTNERSHIP
PULTE HOMES OF NJ, LIMITED
PARTNERSHIP
PULTE HOMES OF NEW YORK, INC.
PULTE HOMES OF PA, LIMITED
PARTNERSHIP
PULTE MICHIGAN HOLDINGS
CORPORATION
PULTE MICHIGAN SERVICES, LLC
WILBEN, LLLP
WIL CORPORATION
By: /s/ Bruce E. Robinson
-------------------------------
Title: Authorized Officer
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CONFIRMED AND ACCEPTED,
as of the date first above written:
Banc One Capital Markets, Inc.
Banc of America Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Comerica Securities, Inc.
SunTrust Equitable Securities Corporation
(SUM) Banc One Capital Markets, Inc.
Banc of America Securities LLC
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Katherine Cokic
-----------------------------------
Title: Associate Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Lynn McConnell
-----------------------------------
Title: Managing Director
For themselves and on behalf of
the several Underwriters
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SCHEDULE A
AGGREGATE PRINCIPAL
NAME OF UNDERWRITER AMOUNT OF OFFERED SECURITIES
Banc One Capital Markets, Inc. $ 80,000,000
Banc of America Securities LLC 60,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 40,000,000
Comerica Securities, Inc. 10,000,000
SunTrust Equitable Securities Corporation 10,000,000
------------
$200,000,000
============
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