EXHIBIT 4(o)
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PULTE HOMES, INC.
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INDENTURE SUPPLEMENT
DATED AS OF FEBRUARY 10, 2005
TO
INDENTURE
DATED AS OF OCTOBER 24, 1995
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J.P. MORGAN TRUST COMPANY, N.A.
TRUSTEE
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SENIOR DEBT SECURITIES
INDENTURE SUPPLEMENT, dated as of February 10, 2005, among PULTE HOMES,
INC., a Michigan corporation ("Company"), located at 100 Bloomfield Hills
Parkway, Suite 300, Bloomfield Hills, Michigan 48304, J.P. MORGAN TRUST COMPANY,
N.A., as Trustee ("Trustee"), and the Company's direct and indirect wholly-owned
domestic homebuilding subsidiaries set forth on the signature pages hereto
(collectively, the "Guarantors").
RECITALS
The Company and certain Guarantors have heretofore executed and delivered
to the Trustee that certain Indenture, dated as of October 24, 1995
(hereinafter, the "Original Indenture" and, as amended by the Indenture
Supplement dated as of August 27, 1997, the Indenture Supplement dated as of
March 20, 1998, the Indenture Supplement dated as of January 31, 1999, two
Indenture Supplements each dated as of April 3, 2000, the Indenture Supplement
dated as of February 21, 2001, the Indenture Supplement dated as of July 31,
2001, the Indenture Supplement dated as of August 6, 2001, the Indenture
Supplement dated as of June 12, 2002, the Indenture Supplement dated as of
February 3, 2003, the Indenture Supplement dated as of May 22, 2003, the
Indenture Supplement dated as of January 16, 2004, the Indenture Supplement
dated as of July 9, 2004 and this Indenture Supplement, hereinafter, the
"Indenture"), pursuant to which one or more series of unsecured debenture, notes
or other evidences of indebtedness of the Company (hereinafter, the
"Securities") may be issued from time to time.
Section 901(6) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 of the Indenture.
Pursuant to the terms of Section 901(6) of the Indenture, the Company
desires to provide for the establishment of the form and terms of (i) a new
series of its Securities to be known as its 5.200% Senior Notes due 2015 (the
"2015 Notes") and (ii) a new series of its Securities to be known as its 6.200%
Senior Notes due 2035 (the "2035 Notes" and, together with the 2015 Notes, the
"Notes").
Section 901(9) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of the Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Indenture Supplement is authorized or
permitted by the Indenture and (ii) a copy of the resolutions of its Board of
Directors certified by its Secretary, pursuant to which this Indenture
Supplement has been authorized.
All things necessary to make this Indenture Supplement a valid agreement
of the Company and the Trustee and a valid amendment of and supplement to the
Indenture have been done.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the mutual covenants and
agreements contained herein, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in
this Indenture Supplement or in the form of Note attached as Exhibit A hereto or
otherwise clearly required by the context hereof or thereof, all capitalized
terms used and not defined in this Indenture Supplement that are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture. For all purposes of this Indenture Supplement:
"Certificated Note" has the meaning set forth in Section 2.04 hereof.
"Closing Date" means February 10, 2005.
"Commission" means the Securities and Exchange Commission and any
successor thereto.
"Company" has the meaning set forth in the preamble.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Exchange Act, specified for that purpose as
contemplated by Section 301 or any successor clearing agency registered under
the Exchange Act as contemplated by Section 305, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of such
series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Note" has the meaning set forth in Section 2.04 hereof.
"Global Security" means a Security bearing the legend specified in Section
204 (as added hereby) evidencing all or part of a series of Securities, issued
to the Depositary for such series or its nominee, and registered in the name of
such Depositary or nominee. Unless otherwise specified, references to a
permanent global security in this Indenture shall include any Global Security.
"Global Securities Legend" means the legend set forth on the form of Note
attached as Exhibit A hereto.
"Guarantors" has the meaning set forth in the preamble.
"Interest Payment Date" means February 15 and August 15.
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"Indenture" has the meaning set forth in the recitals.
"Notes" means any of the Securities of the series designated in the third
paragraph of the recitals hereof and Section 2.01 hereof that are authenticated
and delivered under the Indenture. For all purposes of the Indenture, the term
"Notes" shall include the Notes initially issued on the Closing Date and any
other Notes issued after the Closing Date under the Indenture. For purposes of
the Indenture, the 2015 Notes shall vote together and otherwise constitute a
single series of Securities under the Indenture, and the 2035 Notes shall vote
together and otherwise constitute a simple series of securities under the
Indenture.
"Original Indenture" has the meaning set forth in the recitals.
"Regular Record Date" has the meaning set forth in Section 2.02 hereof.
"Registrar" has the meaning set forth in Section 4.03 hereof.
"Securities" has the meaning set forth in the recitals.
"Trustee" has the meaning set forth in the preamble.
The parties hereto acknowledge that certain terms are defined in both the
Original Indenture and in this Indenture Supplement. The parties hereto hereby
agree that, unless otherwise expressly stated or the context otherwise requires,
any term which is defined in both the Original Indenture and in this Indenture
Supplement, when used with respect to or in the certificates evidencing the
Notes, shall have the meaning set forth in this Indenture Supplement.
ARTICLE II
TERMS OF THE NOTES
SECTION 2.01. Establishment of the Notes.
(a) There is hereby authorized and established a series of Securities
designated the 5.200% Senior Notes due 2015, limited in aggregate principal
amount to $350,000,000 (except as provided in Section 301(2) of the Original
Indenture); provided that the Company may, without the consent of the Holders of
the Outstanding Notes, "reopen" this series of Securities so as to increase the
aggregate principal amount of Notes Outstanding in compliance with the
procedures set forth in the Indenture, including Sections 301 and 303 thereof,
so long as any such additional Notes have the same tenor and terms (including,
without limitation, rights to receive accrued and unpaid interest) as the Notes
then Outstanding.
(b) There is hereby authorized and established a series of Securities
designated the 6.000% Senior Notes due 2035, limited in aggregate principal
amount to $300,000,000 (except as provided in Section 301(2) of the Original
Indenture); provided that the Company may, without the consent of the Holders of
the Outstanding Notes, "reopen" this series of Securities so as to increase the
aggregate principal amount of Notes Outstanding in compliance with the
procedures set forth in the Indenture, including Sections 301 and 303 thereof,
so long as any such
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additional Notes have the same tenor and terms (including, without limitation,
rights to receive accrued and unpaid interest) as the Notes then Outstanding.
SECTION 2.02. Terms of the Notes. The Stated Maturity on which the
principal of the 2015 Notes shall be due and payable shall be February 15, 2015.
The Stated Maturity on which the principal of the 2035 Notes shall be due and
payable shall be February 15, 2035.
The principal of the 2015 Notes shall bear interest at the rate of 5.200%
per annum from February 10, 2005 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, payable semi-annually in
arrears on February 15 and August 15 (each, an "Interest Payment Date") in each
year, commencing August 15, 2005, to the Persons in whose names the 2015 Notes
(or one or more Predecessor Securities) are registered at the close of business
on the February 1 or August 1 immediately preceding such Interest Payment Dates
(each, a "Regular Record Date") regardless of whether such Regular Record Date
is a Business Day. Any overdue principal of and premium, if any, on the 2015
Notes and any overdue installment of interest on the 2015 Notes shall, to the
extent permitted by law, bear interest at the rate of 5.200% per annum. The
principal of the 2035 Notes shall bear interest at the rate of 6.000% per annum
from February 10, 2005 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable semi-annually in arrears on
each Interest Payment Date, commencing August 15, 2005, to the Persons in whose
names the 2035 Notes (or one or more Predecessor Securities) are registered at
the close of business on the Regular Record Date regardless of whether such
Regular Record Date is a Business Day. Any overdue principal of and premium, if
any, on the 2035 Notes and any overdue installment of interest on the 2035 Notes
shall, to the extent permitted by law, bear interest at the rate of 6.000% per
annum.
Interest on the Notes shall be calculated on the basis of a 360-day year
of twelve 30-day months.
No additional amounts will be payable on any Notes held by a Person who is
a non-United States citizen in respect of any tax, assessment or governmental
charge withheld or deducted.
The Borough of Manhattan, in The City of New York is hereby designated as
a Place of Payment for the Notes; and the place where the principal of and
interest on the Notes shall be payable, where Notes may be surrendered for
registration of transfer and exchange, and where notices and, if other than in
the manner provided in Section 105 of the Original Indenture, demands to or upon
the Company in respect of the Notes may be served, shall be the office or agency
maintained by the Company for that purpose in the Borough of Manhattan, in The
City of New York, which initially shall be the office of the Trustee located at
4 New York Plaza, New York, New York 10005, Attention: Corporate Trust
Administration.
The Notes are subject to redemption at the option of the Company as
provided in the form of Notes attached hereto as Exhibit A and in the Indenture.
The Notes shall not have the benefit of a sinking fund.
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The Notes shall be subject to the restricted covenants described in
Sections 1006 and 1007 and Article 8 of the Indenture.
The Notes shall be subject to defeasance and covenant defeasance at the
option of the Company as provided in Sections 1401, 1402 and 1403 of the
Indenture; provided that, without limitation to the provisions of Sections 1401,
1402 and 1403 of the Original Indenture, the provisions of Section 308 and of
Article III of this Indenture Supplement shall survive any such defeasance or
covenant defeasance and remain in full force and effect.
The Notes shall have such other terms and provisions as are set forth in
the form of Note attached hereto as Exhibit A (all of which incorporated by
reference in and made a part of this Indenture Supplement as if set forth in
full at this place).
SECTION 2.03. Denominations. The Notes shall be issued in denominations
equal to integral multiples of $1,000, but in any case not less then $2,000.
SECTION 2.04. Form. The Notes shall be in substantially the form set forth
in Exhibit A hereto, with such changes therein as may be authorized by any
officer of the Company executing the Notes by manual or facsimile signature,
such approval to be conclusively evidenced by the execution thereof by such
officer.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture Supplement, and the Company and
the Trustee, by their execution and delivery of this Indenture Supplement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture Supplement, the provisions of this Indenture Supplement shall
govern and be controlling.
The Notes shall be issued as Registered Securities without coupons.
The 2015 Notes shall be issued initially in the form of one or more
permanent Global Securities, and the 2035 Notes shall be issued initially in the
form of one or more permanent Global Securities (collectively, the "Global
Notes"). The initial Depositary for the Global Notes shall be The Depository
Trust Company. The Global Notes shall be registered in the name of the
Depositary or a nominee of the Depositary and deposited with the Trustee, as
custodian for the Depositary. Notes may be issued in certificated form without
interest coupons only to the extent provided by the Indenture and this Indenture
Supplement ("Certificated Notes"). Except as provided in Section 4.02 of this
Indenture Supplement, owners of beneficial interests in Global Notes will not be
entitled to receive physical delivery of Certificated Notes.
Holders of beneficial interests shall have no rights under the Indenture
with respect to any Global Security held on their behalf by the Depositary or by
the Trustee as Securities Custodian or under such Global Security, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its holders of
beneficial interests, the operation of customary
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practices of such Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Security.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
ORIGINAL ISSUE OF NOTES
SECTION 4.01. Notes. 2015 Notes in the aggregate principal amount of
$350,000,000 and 2035 Notes in the aggregate principal amount of $300,000,000
may be executed by the Company and delivered to the Trustee for authentication
and the Trustee shall thereupon authenticate and, on the Closing Date, deliver
said Notes upon a Company Order without any further action by the Company.
SECTION 4.02. Certificated Notes.
(a) Global Notes deposited with the Depositary or with the Trustee as
Trustee pursuant to Section 2.04 of this Indenture Supplement shall be
transferred to the beneficial owners thereof in the form of Certificated Notes
in an aggregate principal amount equal to the principal amount of such Global
Notes, in exchange for such Global Notes, only if such transfer complies with
Section 305 of the Original Indenture and Section 4.03 of this Indenture
Supplement and (i) the Company notifies the Trustee that the Depositary is no
longer willing or able to act as a depositary or clearing system for the Notes
or the Depositary ceases to be a "clearing agency" registered under the Exchange
Act, and a successor depositary or clearing system is not appointed by the
Company within 90 days of such notice or cessation, (ii) upon the occurrence and
continuation of an Event of Default, or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the issuance
of Certificated Notes under the Indenture rather than have the Notes represented
by a Global Security.
(b) Any Global Note that is transferable to the beneficial owners thereof
pursuant to this Section 4.02 shall be surrendered by the Depositary to the
Trustee, to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations. Any portion of a Global Note
transferred pursuant to this Section 4.02 shall be executed, authenticated and
delivered only in denominations equal to integral multiples of $1,000 of
principal amount, but in any case not less then $2,000. and registered in such
names as the Depositary shall direct.
(c) The registered Holder of a Global Note may grant proxies and otherwise
authorize any Person, including holders of beneficial interests, to take any
action which a Holder is entitled to take under the Indenture or the Notes.
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(d) In the event of the occurrence of any of the events specified in
Section 4.02(a)(i), (ii) or (iii) of this Indenture Supplement, the Company will
promptly make available to the Trustee a reasonable supply of Certificated Notes
in fully registered form without interest coupons.
SECTION 4.03. Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When Certificated Notes
are presented to the Company's registrar with respect to the Notes (the
"Registrar") with a request:
(i) to register the transfer of such Certificated Notes; or
(ii) to exchange such Certificated Notes for an equal principal
amount of Certificated Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided,
however, that the Certificated Notes surrendered for transfer or exchange:
(A) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(B) are accompanied by the following additional information
and documents, as applicable:
(x) if such Certificated Notes are being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in the form set forth on the reverse side of the
Note); or
(y) if such Certificated Notes are being transferred
to the Company, a certification to that effect (in the form
set forth on the reverse side of the Note).
(b) Restrictions on Transfer of a Certificated Note for a Beneficial
Interest in a Global Note. A Certificated Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Certificated
Note, duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, together with written
instructions directing the Trustee to make, or to direct the Trustee to make, an
adjustment on its books and records with respect to such Global Note to reflect
an increase in the aggregate principal amount of the Notes represented by the
Global Note, such instructions to contain information regarding the Depositary
account to be credited with such increase, then the Trustee shall cancel such
Certificated Note and cause, or direct the Trustee to cause, in accordance with
the standing instructions and procedures existing between the Depositary and the
Trustee, the aggregate principal amount of Notes represented by the Global Note
to be increased by the aggregate principal amount of the Certificated Note to be
exchanged and shall credit or cause to be credited
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to the account of the Person specified in such instructions a beneficial
interest in the Global Note equal to the principal amount of the Certificated
Note so canceled. If no Global Notes are then outstanding and the Global Note
has not been previously exchanged for Certificated Notes pursuant to Section
4.02 of this Indenture Supplement, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers'
Certificate, a new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depositary, in accordance
with this Indenture Supplement (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Note shall
deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Note
or another Global Note and such account shall be credited in accordance
with such order with a beneficial interest in the applicable Global Note
and the account of the Person making the transfer shall be debited by an
amount equal to the beneficial interest in the Global Note being
transferred.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Note to a beneficial interest in another Global
Note, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Note to which such interest
is being transferred in an amount equal to the principal amount of the
interest to be so transferred, and the Registrar shall reflect on its
books and records the date and a corresponding decrease in the principal
amount of Global Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Indenture
Supplement (other than the provisions set forth in Section 4.02 of this
Indenture Supplement), a Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
(d) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for
Certificated Notes, transferred, redeemed, repurchased or canceled, such Global
Note shall be returned by the Depositary to the Trustee for cancellation or
retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Certificated Notes,
transferred in exchange for an interest in another Global Note, redeemed,
repurchased or canceled, the principal amount of Notes represented by such
Global Note shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the custodian for such Global Note) with
respect to such Global Note, by the Trustee or the custodian, to reflect such
reduction.
(e) Obligations with Respect to Transfers of Notes.
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(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Certificated
Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer
taxes, assessments or similar governmental charge payable upon exchange or
transfer pursuant to Sections 906, 1107 and 1305 of the Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent or the Registrar may
deem and treat the Person in whose name a Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company,
the Trustee, the Paying Agent or the Registrar shall be affected by notice
to the contrary.
(iv) The Company shall not be required to make and the Registrar
need not register transfers or exchanges of Notes selected for redemption
(except, in the case of Notes to be redeemed in part, the portion thereof
not to be redeemed) or any Notes for a period of 15 days before the
mailing of a notice of redemption of Notes to be redeemed.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture Supplement shall evidence the same debt and shall
be entitled to the same benefits under the Indenture as the Notes
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depositary or any other Person with respect to the accuracy of the records
of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depositary) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Notes shall be
given or made only to the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through the
Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture Supplement or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants, members or
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beneficial owners in any Global Note) other than to require delivery of
such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of
this Indenture Supplement, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Ratification. This Indenture Supplement shall be deemed part
of the Indenture in the manner and to the extent herein provided. Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect.
SECTION 5.02. Counterparts. This Indenture Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 5.03. Governing Law. This Indenture supplement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to the principles of conflicts of laws.
SECTION 5.04. Trustee. The Trustee makes no representation as to the
validity or sufficiency of this Indenture Supplement. The recitals contained
herein shall be taken as the statements of the Company and the Trustee assumes
no responsibility for their correctness.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PULTE HOMES, INC.
[SEAL] By: __________________________________
Name: Bruce E.Robinson
Title: Vice President and Treasurer
Attest:
By: __________________________________
Name: David M. Sherbin
Title: Senior Vice President, General Counsel and Secretary
J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION
[SEAL] By:________________________________
Name:
Title:
Attest:
By: _______________________________
Name:
Title:
STATE OF CALIFORNIA )
: ss.:
COUNTY OF )
On the 10th of February, 2005, before me personally came Bruce E.
Robinson, to me known, who, being by me duly sworn, did depose and say that he
or she is Vice President and Treasurer of PULTE HOMES, INC. one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
_________________________
Notary Public
STATE OF MICHIGAN )
: ss.:
COUNTY OF )
On the 10th of February, 2005, before me personally came ________________,
to me known, who being by me duly sworn, did depose and say that he or she is
____________________ of J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, one of
the corporations described in and which executed the foregoing instrument; that
he or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
___________________________
Notary Public
EXHIBIT A
FORM OF NOTE
Each Global Note shall bear a legend substantially in the form set forth
in this paragraph and substantially in the form set forth in the next succeeding
paragraph (collectively, the "Global Securities Legend"). Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment hereon is made to Cede & Co.
or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of the Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.
PULTE HOMES, INC.
[5.200/6.000]% SENIOR NOTES DUE [2015/2035]
$[350,000,000/300,000,000] CUSIP No. [745867AS0/745867AT8]
No. G-1
PULTE HOMES, INC., a corporation. duly organized and existing under the
laws of Michigan (herein called the "Company", which term includes any successor
Person under the Indenture referred to below), for value received, hereby
promises to pay to Cede & Co., c/o Depository Trust Company, 55 Water Street,
New York, New York 10041, or registered assigns, the principal sum indicated on
Schedule A hereto on February 10, 2015 and to pay interest thereon from August
15, 2005, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually in arrears on February 15 and
August 15 in each year, commencing on August 15, 2005, at the rate of
[5.200/6.000]% per annum, until the principal hereof is paid or made available
for payment and (to the extent that the payment of such interest shall be
legally enforceable) at the same rate per annum on any overdue principal and
premium, if any, and on any overdue installment of interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be February 1
or August 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company, payment of interest may be made by United States dollar check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account maintained by
the payee with a bank located in the United States.
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The payment of, and any premium and interest on, the Notes shall not be
determined with reference to any index or formula.
Payments of interest hereon with respect to any Interest Payment Date will
include interest accrued to but excluding such Interest Payment Date. Interest
on this Security shall be computed on the basis of a 360-day year of twelve
30-day months.
This Security is a Global Security within the meaning of the Indenture and
is registered in the name of the Depositary for this series of Securities or a
nominee of the Depositary. Subject to the terms of the Indenture, beneficial
interests in this Security shall be held through the book-entry facilities of
the Depositary, and such beneficial interests shall be held in denominations
equal to integral multiples of $1,000, but in any case not less then $2,000. As
long as this Security is registered in the name of a Depositary or its nominee,
the Company will make, or will cause the Trustee to make, payments of principal
of and premium, if any, and interest on this Security by wire transfer of
immediately available funds to such Depositary or its nominee. Notwithstanding
the above, the final payment on this Security will be made only upon
presentation and surrender of this Security at an office or agency maintained by
the Company for that purpose in any Place of Payment for the Securities of this
series.
This Security is one of a duly authorized issue of securities of the
Company (hereinafter called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of October 24, 1995 (as amended by the
Indenture Supplement dated as of August 27, 1997, the Indenture Supplement dated
as of March 20, 1998, the Indenture Supplement dated as of January 31, 1999, two
Indenture Supplements each dated as of April 3, 2000, the Indenture Supplement
dated as of February 21, 2001, the Indenture Supplement dated July 31, 2001, the
Indenture Supplement dated August 6, 2001, the Indenture Supplement dated June
12, 2002, the Indenture Supplement dated February 3, 2003, the Indenture
Supplement dated as of May 22, 2003, the Indenture Supplement dated as of
January 16, 2004, the Indenture Supplement dated as of July 9, 2004 and the
Indenture Supplement dated as of the date hereof (the "February 2005 Indenture
Supplement"), (as so amended, the "Indenture"), each between the Company and J.
P. Morgan Trust Company, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, initially limited in aggregate principal amount to
$[350,000,000/300,000,000]; provided that the aggregate principal amount of the
Securities of this series which may be outstanding may be increased by the
Company upon the terms and subject to the conditions set forth in the February
2005 Indenture Supplement. The Securities of this series are issuable only in
registered form, without coupons, in the denominations specified in the February
2005 Indenture Supplement. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
This Security will be redeemable, in whole or in part, from time to time
at the option of the Company, on any date ("Redemption Date") at a redemption
price equal to the greater of (a)
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100% of their principal amount of this Security to be redeemed and (b) the
present value of the Remaining Scheduled Payments (as hereinafter defined) of
principal and interest thereon (exclusive of interest accrued to such Redemption
Date) discounted to such Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate (as
hereinafter defined) plus [20 basis points (0.20%)/25 basis points (0.25%)],
plus accrued and unpaid interest on the principal amount being redeemed to such
Redemption Date; provided, however, that installments of interest on this
Security that are due and payable on an Interest Payment Date falling on or
prior to the relevant Redemption Date shall be payable to the Holders of this
Security, registered as such at the close of business on the relevant Regular
Record Date or Special Record Date, as the case may be, according to their terms
and the provisions of the Indenture.
If money sufficient to pay the redemption price of and accrued interest on
this Security to be redeemed is deposited with the Trustee on or before the
Redemption Date, on and after the Redemption Date interest will cease to accrue
on this Security (or such portions thereof) called for redemption and this
Security will cease to be outstanding.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of this Security to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice in pricing
new issues of corporate debt securities of comparable maturity to the remaining
term of this Security.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(1) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (2) if such release (or any successor release) is not
published or does to contain such price on such business day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means (A) Barclays Capital Inc., Deutsche Bank
Securities Inc., Merrill Lynch & Co., UBS Securities, LLC or one of the other
underwriters (or their respective affiliates which are Primary Treasury
Dealers), and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in the
United States (a "Primary Treasury Dealer"), we will substitute therefor another
Primary Treasury Dealer, and (B) any other Primary Treasury Dealer(s) selected
by us.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of is principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.
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"Remaining Scheduled Payments" means, with respect to this Security, the
remaining scheduled payments of the principal thereof to be redeemed and
interest thereon that would be due after the related Redemption Date but for
such redemption; provided, however, that, if such Redemption Date is not an
Interest Payment Date with respect to this Security, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the amount of
interest accrued thereon to such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
Notice of any redemption by the Company will be mailed at least 60 days
before any Redemption Date to the Trustee. If less than all the Securities of
this series is to be redeemed at the option of the Company, the Trustee shall
select the Securities to be redeemed in whole or in part by such method as the
Trustee deems fair and appropriate as provided in the Indenture.
This Security is not entitled to the benefit of a sinking fund or
mandatory redemption provisions.
If an Event of Default with respect to the Securities shall occur and be
continuing, the principal amount of all the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Securities. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Outstanding Securities, on behalf of the Holders of all Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the Outstanding Securities a direction inconsistent with
such request and shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of (or
premium, if any) or interest on this Security on or after the respective due
dates expressed herein.
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No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
In the event of any Change in Control Triggering Event in respect of the
Company occurring on or prior to maturity of the Securities, each Holder of
Securities will have the right, at the Holder's option, subject to the terms of
the Indenture, to require the Company to purchase all or any part (provided that
the principal amount is an integral multiple of $1,000, but not less then
$2,000) of such Holder's Securities on the date that is 30 days after such
Change in Control Triggering Event (the "Change in Control Purchase Date") at a
cash price equal to the principal amount thereof plus accrued interest to the
Change in Control Purchase Date.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the February 2005
Indenture Supplement shall have the meanings assigned to them in the February
2005 Indenture Supplement and all other terms used in this Security and defined
elsewhere in the Indenture shall have the meanings assigned to them therein.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below, directly or through an Authenticating Agent, by
manual signature of an authorized signatory, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
PULTE HOMES, INC.
By: __________________________________
Name: Bruce E. Robinson
Title: Vice President and Treasurer
Attest:
By: ________________________________
Name: David M. Sherbin
Title: Senior Vice President, General Counsel
and Secretary
Dated: February 10, 2005
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION
as Trustee
By: ____________________
Authorized Signature
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ABBREVIATIONS
The following abbreviations, when used in the inscription above, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ___________________ Custodian ___________________
(Cust) (Minor)
under the Uniform Gifts to Minors Act
________________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
______________________________________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder(s) hereby sell(s),
assign(s) and transfer(s) unto_________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address Including Postal Zip Code of
Assignee)
________________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitute(s) and appoint(s)
________________________________________________________________________________
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
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Dated:_____________
Signature Guaranteed:
_________________________ _______________________
NOTICE: The signature(s) to this assignment must correspond with the name(s) as
written upon the within instrument in every particular, without alteration or
enlargement or any change whatever. The signature(s) must be guaranteed by an
eligible guarantor institution with membership in an approved signature
guarantee "medallion" program pursuant to Commission Rule 17Ad-15.
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GUARANTEE
For value received, each of the undersigned hereby irrevocably and
unconditionally guarantees, jointly and severally, on a senior basis to the
Holder of this Security and to the Trustee, on behalf of the Holder, (i) the due
and punctual payment of the principal of, premium, if any, and interest on this
Security, when and as the same shall become due and payable, whether at Stated
Maturity, purchase upon Change in Control Triggering Event, by declaration of
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of, premium, if any, and interest, if any, on this Security,
to the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holder of this Security or the Trustee all in
accordance with the terms of this Security and the Indenture and (ii) in the
case of any extension of time of payment or renewal of this Security or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at Stated
Maturity, purchase upon Change in Control Triggering Event, by declaration of
acceleration or otherwise (the obligations in clauses (i) and (ii) hereof being
the "Guaranteed Obligations"). This Guarantee will not be valid or obligatory
for any purpose until the Trustee duly executes the certificate of
authentication on the Security upon which this Guarantee is endorsed.
Dated: February 10, 2005
The Guarantors listed on the attached
Exhibit A
By: ___________________________________
Name: Bruce E. Robinson
Title: Vice President and Treasurer
Attest:
By:__________________________________________
Name: David M. Sherbin
Title: Senior Vice President, General Counsel
and Secretary
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EXHIBIT A TO GUARANTEE
AMERICAN TITLE OF THE PALM BEACHES CORPORATION
ANTHEM ARIZONA L.L.C.
ASSET FIVE CORP.
ASSET SEVEN CORP.
CARR'S GRANT, L.L.C.
DEL E. WEBB FOOTHILLS CORPORATION
DEL WEBB CALIFORNIA CORP.
DEL WEBB COMMUNITIES, INC.
DEL WEBB COMMUNITIES OF ILLINOIS, INC. (formerly known as Bellasera Corp.)
DEL WEBB CORPORATION
DEL WEBB GOLF CORP.
DEL WEBB HOME CONSTRUCTION, INC.
DEL WEBB LIMITED HOLDING CO.
DEL WEBB SOUTHWEST CO.
DEL WEBB TEXAS LIMITED PARTNERSHIP
DEL WEBB'S COVENTRY HOMES CONSTRUCTION CO.
DEL WEBB'S COVENTRY HOMES, INC.
DEL WEBB'S COVENTRY HOMES OF NEVADA, INC.
DEL WEBB'S SPRUCE CREEK COMMUNITIES, INC.
DEL WEBB'S SUNFLOWER OF TUCSON, INC.
DEVTEX LAND, L.P.
DIVOSTA BUILDING CORPORATION
DIVOSTA HOMES, L.P.
DIVOSTA HOME SALES, INC. (formerly known as DiVosta Homes, Inc.)
FLORIDA BUILDING PRODUCTS, INC.
FLORIDA CLUB HOMES, INC.
HARRISON HILLS, LLC
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.
PH1 CORPORATION
PH2 CORPORATION
PH3 CORPORATION
PH4 CORPORATION
PHT BUILDING MATERIALS LIMITED PARTNERSHIP
PN I, INC.
PN II, INC.
PULTE COMMUNITIES NJ, LIMITED PARTNERSHIP
PULTE DEVELOPMENT CORPORATION
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PULTE HOME CORPORATION
PULTE HOME CORPORATION OF THE DELAWARE VALLEY
PULTE HOMES OF GREATER KANSAS CITY, INC.
PULTE HOMES OF MICHIGAN LLC
PULTE HOMES OF MICHIGAN I LIMITED PARTNERSHIP
PULTE HOMES OF MINNESOTA CORPORATION
PULTE HOMES OF NEW ENGLAND LLC
PULTE HOMES OF NEW MEXICO, INC.
PULTE HOMES OF NEW YORK, INC.
PULTE HOMES OF NJ, LIMITED PARTNERSHIP
PULTE HOMES OF OHIO LLC
PULTE HOMES OF PA, LIMITED PARTNERSHIP
PULTE HOMES OF TEXAS, L.P.
PULTE HOMES TENNESSEE LIMITED PARTNERSHIP
PULTE-IN CORPORATION
PULTE LAND COMPANY, LLC
PULTE LAND DEVELOPMENT CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE MICHIGAN HOLDINGS CORPORATION
PULTE MICHIGAN SERVICES, LLC
PULTE PAYROLL CORPORATION
PULTE REALTY CORPORATION
RADNOR HOMES, INC.
RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY, INC.
RN ACQUISITION 2 CORP.
SEAN/ CHRISTOPHER HOMES, INC.
TERRAVITA CORP.
TERRAVITA HOME CONSTRUCTION CO.
VILLAGE WALK DEVELOPMENT COMPANY, INC.
WIL CORPORATION
WILBEN, LLLP
- 12 -
SCHEDULE A
The initial principal amount of this Global Security is
$[350,000,000/300,000,000]. The following increases or decreases in the
principal amount of this Global Security have been made:
AMOUNT OF INCREASE IN AMOUNT OF DECREASE IN PRINCIPAL AMOUNT OF
PRINCIPAL PRINCIPAL THIS GLOBAL SECURITY
AMOUNT OF THIS AMOUNT OF THIS FOLLOWING SUCH SIGNATURE OF AUTHORIZED
DATE MADE GLOBAL SECURITY GLOBAL SECURITY DECREASE OR INCREASE SIGNATORY OF TRUSTEE
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