EXHIBIT 1(a)
EXECUTION COPY
PULTE HOMES, INC.
$150,000,000 7.375% SENIOR NOTES DUE 2046
UNDERWRITING AGREEMENT
New York, New York
May 10, 2006
Wachovia Capital Markets, LLC
As Representative of the Several Underwriters
Ladies and Gentlemen:
Pulte Homes, Inc., a corporation organized under the laws of Michigan (the
"Company"), proposes to sell to the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you (the "Representative") are acting as
representative, $150,000,000 aggregate principal amount of its 7.375% Senior
Notes due 2046 (the "Initial Securities") and to grant to the Underwriters,
acting severally and not jointly, the option described in Section 2(b) hereof to
purchase all or any part of an additional $22,500,000 aggregate principal amount
of its 7.375% Senior Notes due 2046 (the "Option Securities") to cover
over-allotments, if any. Unless the context otherwise requires, the Initial
Securities to be purchased by the Underwriters on the Closing Date (as defined
in Section 3) and all or any part of the Option Securities are hereinafter
referred to collectively as the "Securities." The Securities are to be issued
under an indenture (the "Indenture") dated as of October 24, 1995, as
supplemented 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 May 22, 2003, the indenture
supplement dated January 16, 2004, the indenture supplement dated July 9, 2004,
the indenture supplement dated February 10, 2005 and the indenture supplement to
be dated May 17, 2006 between the Company, as issuer, the Company's subsidiaries
listed in Schedule III hereto (collectively, the "Subsidiary Guarantors"), and
J.P. Morgan Trust Company, National Association (successor-in-interest to Bank
One Trust Company, National Association, which was successor-in-interest to The
First National Bank of Chicago), as trustee (the "Trustee"). The Subsidiary
Guarantors, jointly and severally, shall fully and unconditionally guarantee, on
a senior basis, to each holder of Securities and the Trustee, the payment and
performance of the Company's obligations under the Indenture and the Securities
(each guarantee being referred to herein as a "Guarantee"). Any reference herein
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, including a related basic prospectus, for registration under the
Act of the offering and sale of the Securities which is effective under
the Act (including any amendments thereto filed prior to the Applicable
Time). The Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will file with the Commission a Final
Prospectus Supplement relating to the Securities, which shall contain all
information required by the Act and the rules thereunder to be included in
such Final Prospectus Supplement similar in all substantive respects to
the most recent Preliminary Final Prospectus and shall contain only such
information as (i) may be included in the final term sheet as prepared and
filed with the Commission pursuant to Section 5(a) of this Agreement and
(ii) such specific additional information and other changes (beyond that
contained in the most recent Preliminary Final Prospectus) as the Company
has advised you, prior to the Applicable Time, will be included or made
therein. The Registration Statement, at the Applicable Time (and, if any
Option Securities are purchased, at the Date of Delivery), meets the
requirements set forth in Rule 415(a)(1)(x).
(b) (1) At the time of filing the Registration Statement, (2) at the
time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), (3) at the time the
Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c)) made any offer relating to the Securities in
reliance on the exemption of Rule 163 and (4) at the date hereof, the
Company was and is a "well-known seasoned issuer" as defined in Rule 405.
The Registration Statement is an "automatic shelf registration statement,"
as defined in Rule 405, and the Securities, since their registration on
the Registration Statement, have been and remain eligible for registration
by the Company on a Rule 405 "automatic shelf registration statement". The
Company has not received from the Commission any notice pursuant to Rule
401(g)(2) objecting to the use of the automatic shelf registration
statement form.
(c) At the time of filing the Registration Statement, at the
earliest time thereafter that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)) of the
Securities and at the date hereof, the Company was not and is not an
"ineligible issuer," as defined in Rule 405, without taking account of any
determination by the Commission pursuant to Rule 405 that it is not
necessary that the Company be considered an "ineligible issuer."
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(d) Any offer that is a written communication relating to the
Securities made prior to the filing of the initial Registration Statement
by the Company or any person acting on its behalf (within the meaning, for
this paragraph only, of Rule 163(c)) has been filed with the Commission in
accordance with the exemption provided by Rule 163 and otherwise complied
with the requirements of Rule 163, including without limitation the
legending requirement, to qualify such offer for the exemption from
Section 5(c) of the Act provided by Rule 163.
(e) Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and sale
of the Securities or until any earlier date that the issuer notified or
notifies the Underwriters as described in Section 5(l), did not, does not
and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or
the Prospectus, including any document incorporated by reference therein
and any preliminary or other prospectus deemed to be a part thereof that
has not been superseded or modified.
(f) (i) The Registration Statement complied and will comply in all
material respects on the Effective Date and on the Closing Date (and, if
any Option Securities are purchased, at the Date of Delivery), and any
amendment to the Registration Statement filed after the date hereof will
comply in all material respects when filed with the Commission, to the
requirements of the Act, the Exchange Act and the Trust Indenture Act, as
applicable; (ii) the most recent Preliminary Prospectus complied, and the
Final Prospectus (and any supplement thereto) will comply, in all material
respects when filed with the Commission pursuant to 424(b) and on the
Closing Date (and, if any Option Securities are purchased, at the Date of
Delivery) to the requirements of the Act; (iii) the documents incorporated
by reference in the most recent Preliminary Prospectus or the Final
Prospectus complied, and any further documents to be filed and so
incorporated will comply, when filed with the Commission, in all material
respects to the requirements of the Exchange Act or the Act, as
applicable; (iv) each Issuer Free Writing Prospectus complied or will
comply in all material respects to the requirements of the Act on the date
of first use, and the Company has complied with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Act; and
(v) on the Effective Date and on the Closing Date (and, if any Option
Securities are purchased, at the Date of Delivery), the Indenture did and
will comply in all material respects with the applicable requirements of
the Trust Indenture Act, and upon due execution and delivery of the
Supplemental Indenture, the Indenture will so comply.
(g) On the Effective Date and at the Applicable Time (and, if any
Option Securities are purchased, at the Date of Delivery), the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date (and, if any
Option Securities are purchased, at the Date of Delivery) the Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; the
Disclosure Package did not, or as of the Applicable Time (and, if any
Option Securities are purchased, at the Date of Delivery) will not,
contain any untrue
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statement of material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; when considered together with the Disclosure Package as of the
Applicable Time (and, if any Option Securities are purchased, at the Date
of Delivery), each Issuer Free Writing Prospectus (i) when considered
together with the Disclosure Package as of the Applicable Time, and (ii)
as of its issue date and as of the Closing Date (and, if any Option
Securities are purchased, at the Date of Delivery) did not or will not
contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date
(and, if any Option Securities are purchased, at the Date of Delivery),
the Final Prospectus (together with any supplement thereto) will not,
include any 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 Company makes no representations or warranties
as to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement, the Final Prospectus (or any
supplement thereto) or any Issuer Free Writing Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representative specifically
for inclusion in the Registration Statement, the Disclosure Package or the
Final Prospectus (or any supplement thereto). If there occurs an event or
development as a result of which the Disclosure Package would include an
untrue statement of a material fact or would omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will notify
promptly the Underwriters so that any use of the Disclosure Package may
cease until it is amended or supplemented.
(h) The documents incorporated or deemed to be incorporated by
reference in the Final Prospectus 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 Exchange Act and rules and
regulations of the Commission thereunder, and, when read together with the
other information in the Final Prospectus, at the time each was issued and
on the Closing Date (and, if any Option Securities are purchased, at the
Date of Delivery), did not and will not include 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.
(i) Since the respective dates as of which information is given in
the Disclosure Package and the Final Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change or any
condition or event that has resulted or could reasonably be expected to
result in a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (a "Material Adverse
Effect"), (ii) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business,
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which are material with respect to the Company and its subsidiaries, taken
as a whole, and (iii) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(j) All the issued and outstanding equity interests of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set forth
in the Disclosure Package and the Final Prospectus, all issued and
outstanding equity interests of such subsidiaries are owned by the Company
either directly or through wholly-owned subsidiaries, free and clear of
any perfected security interest or any other security interests, claims,
liens or encumbrances of any kind. None of the outstanding shares of
capital stock of the Subsidiary Guarantors was issued in violation of any
preemptive or similar rights arising by operation of law, or under the
charter or by-laws of such Subsidiary Guarantor or under any agreement to
which the Company or such Subsidiary Guarantor is a party.
(k) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Disclosure Package and the Final Prospectus, and is duly qualified to
do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification; except in
such jurisdictions in which the failure to so qualify would not have a
Material Adverse Effect or a material adverse effect on the enforceability
of this Agreement, the Indenture, the Securities or any of the Guarantees.
(l) The Company's authorized equity capitalization is as set forth
in the Disclosure Package and the Final Prospectus; and the Securities
conform in all material respects to the description thereof contained in
the Disclosure Package and the Final Prospectus; and, except as set forth
in the Disclosure Package and the Final Prospectus, no options, warrants,
or other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding.
(m) (i) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby; (ii) the Company and
each Subsidiary Guarantor has all requisite power and authority to
execute, deliver and perform each of its obligations under the Indenture;
and (iii) the Company and each of the Subsidiary Guarantors has all
requisite power and authority to execute, deliver and perform each of its
obligations under the Securities.
(n) (i) This Agreement has been duly authorized, executed and
delivered by the Company; (ii) the Indenture meets the requirements for
qualification under the Trust Indenture Act and has been duly and validly
authorized and, assuming due authorization, execution and delivery thereof
by the Trustee, when executed and delivered by the Company, will
constitute a legal, valid, binding instrument enforceable against the
Company and each Subsidiary Guarantor in accordance with its terms
(subject, as to the
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enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity); (iii)
the Securities have been duly and validly authorized by the Company and,
when executed by the Company and each Subsidiary Guarantor party thereto
and authenticated by the Trustee in accordance with the provisions of the
Indenture and when delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement and the Indenture, will have
been duly executed, issued and delivered and will constitute valid and
legally binding obligations of the Company, entitled to the benefits of
the Indenture, and enforceable against the Company and each Subsidiary
Guarantor in accordance with their respective terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); and (iv) the Guarantees have
been duly and validly authorized, executed and delivered by the Subsidiary
Guarantors, and when such Guarantees are executed and endorsed upon the
Securities and delivered in accordance with the terms of the Indenture,
such Guarantees will constitute valid binding obligations of the
Subsidiary Guarantors entitled to the benefits of the Indenture,
enforceable against the Subsidiary Guarantors in accordance with their
terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity).
(o) There is no franchise, contract or other document of a character
required to be described in the Registration Statement, the Disclosure
Package or the Final Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required;
(p) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Disclosure Package and the Final Prospectus, will not be
an "investment company" as defined in the Investment Company Act of 1940,
as amended.
(q) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and the Trust Indenture Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Disclosure Package and the Final
Prospectus.
(r) Neither the execution and delivery of the Indenture, this
Agreement, the issue and sale of the Securities, the Guarantees, nor the
consummation of any other of the transactions herein or therein
contemplated, nor the fulfillment of the terms hereof or thereof will,
whether with or without the giving of notice or passage of time or both,
conflict with, result in a breach or violation or default or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any Subsidiary Guarantor pursuant to, (i) the charter or by-laws of the
Company or any Subsidiary Guarantor; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement,
or other agreement, obligation, condition, covenant or instrument to which
the Company or any Subsidiary Guarantor is a party or bound or to which
its or their
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property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any Subsidiary
Guarantor or any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any Subsidiary Guarantor or any of its or their properties,
other than, in the case of clauses (ii) and (iii) above only, such
breaches, violations, defaults, liens, charges or encumbrances which,
singly or in the aggregate, would not have a Material Adverse Effect. The
execution, delivery and performance of this Agreement, the Indenture, the
issue and sale of the Securities and, in the case of the Subsidiary
Guarantors, the Guarantees, and the consummation of the transactions
contemplated herein and therein (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Disclosure Package and the Final Prospectus under the
caption "Use of Proceeds") and compliance by each of the Company and the
Subsidiary Guarantors with its obligations hereunder and thereunder will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any Subsidiary Guarantor pursuant to, the Agreements and Instruments,
except for such conflicts, breaches or defaults or liens, charges or
encumbrances that, singly or in the aggregate, would not result in a
Material Adverse Effect, nor will such action result in a breach or
violation of the provisions of the charter or bylaws of the Company or any
Subsidiary Guarantor or any applicable law, statute, judgment, writ,
decree, order, rule or regulation applicable to it or any of its
properties, assets or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence or indebtedness (or any person acting on such holders'
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(s) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(t) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiaries included in the
Disclosure Package and the Final Prospectus and the Registration Statement
present fairly in all material respects the financial condition, results
of operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein). The
selected consolidated financial data set forth under the caption "Selected
Consolidated Financial Information" in the Final Prospectus, the
Disclosure Package and Registration Statement fairly present, on the basis
stated in the Final Prospectus, the Disclosure Package and the
Registration Statement, the information included therein.
(u) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i)
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is required to be disclosed in the Disclosure Package and the Final
Prospectus, (ii) could reasonably be expected to have a material adverse
effect on the performance of this Agreement, the Indenture, or the
Securities, or the consummation of any of the transactions contemplated
hereby or thereby; or (iii) could reasonably be expected to have a
Material Adverse Effect. All pending legal or governmental proceedings to
which the Company or any Subsidiary Guarantor is a party or of which any
of their respective property assets is the subject which are not described
in the Disclosure Package and the Final Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect. There are no contracts or
documents of the Company or any of its subsidiaries which are required to
be filed as exhibits to the Disclosure Package and the Final Prospectus by
the Securities Act which have not been so filed.
(v) Each of the Company and each of its subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted.
(w) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable, other than, in
the case of clauses (ii) and (iii) above only, such violations or defaults
which, singly or in the aggregate, would not have a Material Adverse
Effect.
(x) Ernst & Young, LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the Disclosure Package and the Final Prospectus,
are independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(y) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so
to file would not have a Material Adverse Effect), and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith and by appropriate proceedings, and for which the
Company and the Subsidiary Guarantors, as applicable, have provided
adequate charges, accruals and reserves in accordance with generally
accepted accounting principles or as would not have a Material Adverse
Effect. There is no tax deficiency or actual or proposed tax assessment
that has been asserted against the Company or any Subsidiary Guarantor
that would have, singly or in the aggregate, a Material Adverse Effect.
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(z) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the Company's knowledge, is
threatened or imminent, and the Company is not aware of any existing labor
disturbance by the employees of any of its or its subsidiaries' principal
suppliers, contractors or customers, that could have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
(aa) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged; all policies of insurance and fidelity or
surety bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in
full force and effect; the Company and its subsidiaries are in compliance
with the terms of such policies and instruments in all material respects;
and there are no claims by the Company or any of its subsidiaries under
any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; 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, except
as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(bb) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary's capital stock, from repaying to
the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Disclosure Package and the Final Prospectus. There is
no tax deficiency or actual or proposed tax assessment that has been
asserted against the Company or any Subsidiary Guarantor that would have,
singly or in the aggregate, a Material Adverse Effect.
(cc) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect, except
as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(dd) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in
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conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ee) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(ff) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a Material Adverse Effect, except as set forth
in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto). Except as set forth in the
Disclosure Package and the Final Prospectus, neither the Company nor any
of the subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(gg) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(hh) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the United States Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company and its subsidiaries are eligible to participate
and each such plan is in compliance in all material respects with the
presently applicable provisions of ERISA and such regulations and
published interpretations. The Company and its subsidiaries have
10
not incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA.
(ii) Other than First Heights Holding Corp., Pulte Financial
Companies, Inc., Pulte Mortgage LLC (formerly Pulte Mortgage Corporation),
Pulte Diversified Companies Inc. and North American Builders Indemnity
Corporation, the Subsidiary Guarantors are the only significant
subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X.
(jj) Except as disclosed in the Registration Statement, the
Disclosure Package and the Final Prospectus, the Company (i) does not have
any material lending or other relationship with any bank or lending
affiliate of the Underwriters and (ii) does not intend to use any of the
proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of the Underwriters.
(kk) The Company and its subsidiaries have good and marketable title
to all real property and other material assets (personal, tangible,
intangible or mixed) described in the Disclosure Package and the Final
Prospectus as owned by the Company and its subsidiaries, in each case,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except such as (a) are
described in the Disclosure Package and the Final Prospectus or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company or any of its subsidiaries. All of the leases
and subleases material to the business of the Company and its subsidiaries
and under which the Company or any of its subsidiaries holds properties
described in the Disclosure Package and the Final Prospectus are in full
force and effect, and neither the Company nor any of its subsidiaries has
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or any subsidiary thereof to the
continued possession of the leased or subleased premises under any such
lease or sublease. All tangible assets and properties of the Company and
each Subsidiary Guarantor are in good working order (subject to ordinary
wear and tear) and are adequate for the uses to which they are being put
in the ordinary course of business.
(ll) The direct or indirect subsidiaries of the Company that are not
Subsidiaries Guarantors account, in the aggregate, for less than 4.5% of
the Company's consolidated total revenues. The financial information
relating to the Subsidiary Guarantors contained or incorporated by
reference in the Disclosure Package and the Final Prospectus (the
"Subsidiary Guarantor Segment Financial Information") is based upon the
books and records of the Subsidiary Guarantors; the Subsidiary Guarantor
Segment Financial Information 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; and the Subsidiary Guarantor
Segment Financial Information has been prepared in conformity with
generally accepted
11
accounting principles applied on a consistent basis throughout the periods
involved. The Subsidiary Guarantor Segment Financial Information contained
or incorporated by reference in the Final Prospectus complies with the
financial statement reporting requirements and guidelines of Regulation
S-X of the Securities Act, including, without limitation, Rule 3-10 of
Regulation S-X, applicable guidance and interpretations contained in
Financial Reporting Release No. 55 and Securities Act Release No. 33-7878
of the Securities Exchange Commission.
(mm) The statistical and market-related data included in the
Disclosure Package and the Final Prospectus are based on or derived from
independent sources which the Company believes to be reliable in all
material respects or represent the Company's good faith estimate.
(nn) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15 under the Exchange
Act) that (i) are designed to ensure that material information relating to
the Company, including its consolidated subsidiaries, is made known to the
Company's Chief Executive Officer and its Chief Financial Officer by
others within those entities, (ii) have been evaluated for effectiveness
as of a date within 90 days prior to the filing of the Company's most
recent Annual Report filed with the Commission and (iii) are effective to
perform the functions for which they were established. Additionally, the
Company maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorizations, (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability, (C) access to assets is permitted only
in accordance with management's general or specific authorization, and (D)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(oo) The accountants and the Audit Committee of the Board of
Directors of the Company have not been advised of (i) any significant
deficiencies in the design or operation of internal controls which could
adversely affect the Company's ability to record, process, summarize, and
report financial data and (ii) any fraud, whether or not material, that
involves management or other employees who have a role in the Company's
internal controls.
(pp) Except as disclosed in the Disclosure Package and the Final
Prospectus or in any document incorporated by reference therein, since
December 31, 2005, there has been (i) no material weakness in the
Company's internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company's internal control over
financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company's internal control over financial
reporting.
(qq) There is and has been no failure on the part of the Company and
its subsidiaries or any of the officers and directors of the Company or
any of its subsidiaries, in their capacities as such, to comply in all
material respects with (i) the provisions of the
12
Sarbanes-Oxley Act of 2002 and the rules and regulations in connection
therewith, including without limitation Section 402 related to loans,
Section 404 related to management assessment of internal controls and
Sections 302 and 906 related to certifications, and (ii) the applicable
rules and regulations of the New York Stock Exchange with respect to the
composition of the audit committee of the Company and related member
independence standards.
Any certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
(b) In addition, subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company
hereby grants an option to the Underwriters, acting severally and not
jointly, to purchase up to $22,500,000 in aggregate principal amount of
Option Securities from the Company at the same price as the purchase price
to be paid by the Underwriters for the Initial Securities, plus accrued
interest and additional interest, if any, from the Closing Date to the
Date of Delivery. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities
upon notice by the Representative to the Company setting forth the number
of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of delivery and payment for
such Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representative, but shall not be
later than five full business days after the exercise of such option, nor
in any event prior to the Closing Time. If the option is exercised as to
all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the
total number of the Option Securities then being purchased which the
number of Initial Securities set forth in Schedule II opposite the name of
such Underwriter bears to the total number of Initial Securities, subject
in each case to adjustments as the Representative in its discretion shall
make to eliminate any sales or purchases of fractional shares.
3. Delivery and Payment.
(a) Delivery of and payment for the Initial Securities shall be made
on the date and at the time specified in Schedule I hereto or at such time
on such later date not more than three Business Days after the foregoing
date as the Representative shall designate,
13
which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Initial Securities being
herein called the "Closing Date").
(b) In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities shall
be made at the offices specified in Schedule I hereto, or at such other
place as shall be agreed upon by the Representative and the Company, on
each Date of Delivery as specified in the notice from the Representative
to the Company.
(c) Delivery of the Securities shall be made to the Representative
for the respective accounts of the several Underwriters against payment by
the several Underwriters through the Representative of the purchase price
thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust
Company unless the Representative shall otherwise instruct.
4. Offering by Underwriters.
(a) It is understood that the several Underwriters propose to offer
the Securities for sale to the public as set forth in the Final
Prospectus.
(b) Each of the several Underwriters represents, warrants and agrees
that:
(i) in relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a
"Relevant Member State"), with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant
Member State (the "Relevant Implementation Date"), it has not made
and will not make an offer of the Securities to the public in that
Relevant Member State prior to the publication of a prospectus in
relation to the Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of the
Securities to the public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities:
(B) any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year; (2) a total balance sheet of more than (euro)43,000,000,
and (3) an annual net turnover of more than (euro)50,000,000,
as shown in its last annual or consolidated accounts; or
14
(C) in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article
3 of the Prospectus Directive.
For the purposes of this provision, the expression "an offer of the
Securities to the public" in relation to any Securities in any Relevant Member
State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Securities to be offered so as to
enable an investor to decide to purchase or subscribe the Securities, as the
same may be varied in that Member State by any means implementing the Prospectus
Directive in that Member State, and the expression "Prospectus Directive" means
Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
(ii) it has only communicated or caused to be communicated and
will communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the U.K. Financial Services and Markets Act 2000
("FSMA") received by it in connection with the issue or sale of the
Securities in circumstances in which Section 21(1) of FSMA does not
apply to the Company or the Guarantors; and
(iii) it has complied with and will comply with all applicable
provisions of FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United
Kingdom.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus, the Disclosure Package or any
Preliminary Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably object. The
Company will cause the final term sheet substantially in the form of
Exhibit A attached hereto to be filed in a form approved by the
Representative with the Commission pursuant to Rule 433(d) under the Act
within the time period prescribed, and such final term sheet will be a
Permitted Free Writing Prospectus for purposes of this Agreement. The
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Representative
with the Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act within the time period prescribed. The Company will promptly
file with the Commission any amendment or supplement to the Registration
Statement or the Final Prospectus that may, in the judgment of the Company
after consultation with the Representative, be required by the Act or the
Commission. The Company will promptly advise the Representative (i) when
the final term sheet shall have been filed with the Commission pursuant to
Rule 433(d) under the Act, (ii) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b) under the Act, (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission or its staff for any amendment of the Registration Statement,
or any Rule
15
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (v) of the issuance by the
Commission of (A) any stop order or of any order preventing or suspending
the use of the Final Prospectus or any Issuer Free Writing Prospectus, (B)
any stop order suspending the effectiveness of the Registration Statement
or of any notice preventing or objecting to the use of the form of the
Registration Statement or any post-effective amendment thereto or the
institution or threatening of any proceeding for such purpose or (C) any
request for the amending or supplementing of the Registration Statement,
the Final Prospectus or any Issuer Free Writing Prospectus and (vi) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof, including if necessary by filing
an amendment to the Registration Statement or a new registration statement
and using its best efforts to have such amendment or new registration
statement declared effective.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representative of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representative and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Final Prospectus, if any, and
the Final Prospectus and any supplement thereto and each Issuer Free
Writing Prospectus as the Representative may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representative may designate, will maintain such qualifications in effect
so long as required for the distribution of the
16
Securities and will pay any fee of the National Association of Securities
Dealers, Inc., in connection with its review of the offering; provided
that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject. The Company will promptly advise the
Representative of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose and use its best efforts to obtain the withdrawal or lifting
of such suspension at the earliest possible time.
(f) The Company will not, without the prior written consent of the
Representative, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any debt securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto.
(g) The Company will not take and will cause its controlled
affiliates (within the meaning of Rule 144 under the Act) not to take,
directly or indirectly, any action designed to or that would constitute or
that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(h) The Company will cooperate with the Representative and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(i) The Company will use the net proceeds received by it from the
sale of the Securities solely in the manner specified in the Disclosure
Package and the Final Prospectus under the caption "Use of Proceeds".
(j) The Company represents and agrees that, unless it obtains the
prior consent of the Representative, and the Representative represents and
agrees that, unless it obtains the prior consent of the Company, it has
not made and will not make any offer relating to the Securities that would
constitute an "issuer free writing prospectus," as defined in Rule 433, or
that would otherwise constitute a "free writing prospectus," as defined in
Rule 405, required to be filed with the Commission; provided, however,
prior to the preparation of the final term sheet in accordance with
Section 5(a), the Underwriters are authorized to use the information with
respect to the final terms of the Securities in communications conveying
information relating to the offering to investors. Any such
17
free writing prospectus consented to by the Company and the Representative
is hereinafter referred to as a "Permitted Free Writing Prospectus." The
Company represents that it has treated or agrees that it will treat each
Permitted Free Writing Prospectus as an "issuer free writing prospectus,"
as defined in Rule 433, and has complied and will comply with the
requirements of Rule 164 and Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping.
(k) If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement (or any other
registration statement relating to the Securities) or Final Prospectus or
any preliminary prospectus or included or would include an untrue
statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at that subsequent time, not misleading, the
Company will promptly notify the Representative and will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
(l) The registration statement relating to the Securities is an
"automatic shelf registration statement," as defined in Rule 405, that
initially became effective within three years of the date hereof. If
immediately prior to the third anniversary (the "Renewal Deadline") of the
initial Effective Date of the automatic shelf registration statement
relating to the Securities, any of the Securities remain unsold by the
Underwriters, the Company will prior to the Renewal Deadline file, if it
has not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Securities, in a form satisfactory
to the Representative. If the Company is no longer eligible to file an
automatic shelf registration statement, the Company will prior to the
Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Securities, in a form satisfactory
to the Representative, and will use its best efforts to cause such
registration statement to be declared effective within 180 days after the
Renewal Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities to
continue as contemplated in the expired registration statement relating to
the Securities. References herein to the Registration Statement relating
to the Securities shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may be.
(m) The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) objecting to use of the automatic shelf
registration statement form. If at any time when Securities remain unsold
by the Underwriters the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will (i) promptly
notify the Representative, (ii) promptly file a new registration statement
or post-effective amendment on the proper form relating to the Securities,
in a form satisfactory to the Representative, (iii) use its best efforts
to cause such registration statement or post-effective amendment to be
declared effective as soon as practicable, and (iv) promptly notify the
Representative of such effectiveness. The Company will take all other
action
18
necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the registration statement that
was subject of the Rule 401(g)(2) notice or for which the Company has
otherwise become ineligible. References herein to the registration
statement relating to the Securities shall include such new registration
statement or post-effective amendment, as the case may be.
(n) The Company shall pay or have paid the required Commission
filing fees relating to the Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(o) The Company has not distributed, and will not distribute or
authorize or permit any person acting on its behalf to, prior to the later
of the Closing Time and the termination of the Underwriters' distribution
of the Securities, any offering material in connection with the offering
and sale of the Securities other than (A) the Registration Statement, (B)
the Basic Prospectus, (C) any preliminary prospectus, (D) the Final
Prospectus, (E) any Issuer Free Writing Prospectus reviewed and consented
to by the Representative pursuant to this Agreement or (F) any free
writing prospectus that the Company and the Representative agree to treat
as part of the Disclosure Package.
(p) The Company will use its best efforts to effect the listing of
the Securities, prior to the Closing Date, on the New York Stock Exchange.
(q) The Company agrees not to, and to ensure that no "affiliate" (as
defined in Rule 501(b) of the Act) of the Company will, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) that would be integrated with the sale
of the Securities.
(r) The Company agrees to comply with the representation letter of
the Company to DTC relating to the approval of the Securities by DTC for
"book entry" transfer.
(s) For so long as the Underwriter shall hold any of the Securities,
the Company agrees to furnish to the Underwriter copies of all reports and
other communications (financial or otherwise) furnished by the Company to
the Trustee or to the holders of the Securities and, as soon as available,
copies of any reports or financial statements furnished to or filed by the
Company with the Commission or any national securities exchange on which
any class of securities of the Company may be listed.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities, as applicable, shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Applicable Time, the Closing Date and
each Date of Delivery, as applicable, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been
filed in the manner and within the time period required by Rule 424(b)
under the Act; all filings (including, without limitation, the Final Term
Sheet) required by Rule 433 under the Act
19
shall have been made, and no such filings shall have been made without the
consent of the Representative (which consent shall not have been
unreasonably withheld); and no stop order suspending the effectiveness of
the Registration Statement or preventing or suspending the use of the
Final Prospectus of any Issuer Free Writing Prospectus shall have been
issued, and no proceedings or examination for such purpose shall have been
instituted.
(b) The Company shall have requested and caused:
(I) Sidley Austin LLP, counsel for the Company, to have
furnished to the Representative their opinion, dated the Closing Date and each
Date of Delivery, as applicable, and addressed to the Representative, to the
effect that:
(i) each of the Subsidiary Guarantors listed in Schedule IV
hereto (which are those Subsidiary Guarantors organized or formed
under the laws of the State of Delaware, Maryland or New York)
(the "DMNY Subsidiary Guarantors") has been duly incorporated or
otherwise formed and is validly existing in good standing under
the laws of the jurisdiction in which it is incorporated or
formed, with full corporate, partnership or limited liability
company power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus;
(ii) (A) the Indenture has been duly authorized, executed
and delivered by each DMNY Subsidiary Guarantor, has been duly
qualified under the Trust Indenture Act, and (assuming the due
authorization, execution and delivery thereof by the Company and
each Subsidiary Guarantor (other than the DMNY Subsidiary
Guarantors) and by the Trustee) constitutes a legal, valid and
binding instrument enforceable against the Company and each
Subsidiary Guarantor in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law); and (B) assuming
the Securities have been duly authorized, the Securities, when
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law); and (C) the
Guarantees to which the DMNY Subsidiary Guarantors are a party
have been duly and validly authorized by the DMNY Subsidiary
Guarantors and, assuming the Guarantees to which the non-DMNY
Subsidiary Guarantors are a party have been duly authorized, the
Guarantees, when executed and authenticated in accordance with
20
the provisions of the Indenture (assuming the due authorization,
execution and delivery of the Indenture by the Trustee, the
Company and each Subsidiary Guarantor (other than the DMNY
Subsidiary Gurantors)) and when endorsed on the Securities in the
manner provided in the Indenture, will constitute legal, valid and
binding obligations of the Subsidiary Guarantors enforceable
against each Subsidiary Guarantor party thereto in accordance with
its terms and entitled to the benefits of the Indenture (subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditor' rights generally from time to time in effect and to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law); and (D) the statements set forth under the
heading "Description of Senior Notes" in the Final Prospectus,
insofar as such statements purport to summarize legal matters,
agreements, documents or proceedings discussed therein, have been
reviewed by such counsel and are correct in all material respects;
(iii) to the knowledge of such counsel, there is no pending
or threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Disclosure
Package and the Final Prospectus;
(iv) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened,
and the Registration Statement, the Disclosure Package and the
Final Prospectus (other than any document filed pursuant to the
Exchange Act and incorporated or deemed to be incorporated by
reference in the Final Prospectus and other than the financial
statements and other financial or statistical data contained
therein, in each case as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Trust Indenture Act and
the respective rules thereunder;
(v) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Disclosure Package and the
Final Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended;
(vi) the DMNY Subsidiary Guarantors have all requisite
corporate, partnership or limited liability company power and
authority, the DMNY Guarantors have taken all requisite corporate,
partnership and limited liability
21
company action, and the Company and the DMNY Subsidiary Guarantors
have received all governmental, judicial and other authorizations,
approvals and orders which, to the knowledge of such counsel, are
applicable to the Company and any DMNY Subsidiary Guarantor,
necessary to enter into and perform this Agreement, the Indenture,
the Securities, and the Guarantees;
(vii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the execution and delivery of this Agreement by
the Company or any Subsidiary Guarantors and the performance of
the obligations hereunder, or under the Indenture, the Securities
or the Guarantees, except such as have been obtained under the Act
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated in
this Agreement, the Disclosure Package and in the Final Prospectus
and such other approvals as have already been obtained;
(viii) neither the execution and delivery of the Indenture,
this Agreement, the issue and sale of the Securities, and in the
case of the Subsidiary Guarantors, the Guarantees, nor the
consummation of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or thereof
will, to the knowledge of such counsel, conflict with, result in a
breach or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the DMNY
Subsidiary Guarantors pursuant to, (i) the charter or by-laws of
the Company or the DMNY Subsidiary Guarantors, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its
subsidiaries is a party or bound or to which its or their property
is subject, which is filed or incorporated by reference as an
exhibit to the Registration Statement (including any such
agreement or other instrument filed as an exhibit to any report
filed by the Company or any Subsidiary Guarantor with the
Securities and Exchange Commission since the date of filing of the
Registration Statement), or (iii) any statute, law, rule,
regulation, or any judgment, order or decree of which such counsel
is aware, applicable to the Company or the DMNY Subsidiary
Guarantors of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or
their properties, except in the case of clause (ii) or (iii) for
breaches, violations or imposition of liens 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 the
Underwriting Agreement, the Indenture, the Securities and the
Guarantees or the consummation of the transactions contemplated
herein or therein;
(ix) to the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement;
22
(x) to the knowledge of such counsel, there are no
contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in
the Disclosure Package and the Final Prospectus or to be filed as
exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto;
(xi) the Securities, the Guarantees and the Indenture
conform in all material respects to the descriptions thereof
contained or incorporated by reference in the Disclosure Package
and the Final Prospectus;
(xii) each document filed pursuant to the Exchange Act
(other than the financial statements and supporting schedule and
other financial or statistical data included or incorporated by
reference therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the
Final Prospectus complied when so filed as to form in all material
respects with the Exchange Act; and
(xiii) neither the consummation of the transactions
contemplated by this Agreement or the Indenture nor the sale,
issuance, execution or delivery of the Securities will violate
Regulation T, U or X promulgated by the Board of Governors of the
Federal Reserve System, assuming the proceeds of the sale of the
Securities are utilized as described in the Disclosure Package and
the Final Prospectus.
Such counsel shall also state that no fact has come to their
attention that causes them to believe that (i) the Registration Statement
or any amendment thereto, including the Rule 430A Information (except for
financial statements and schedules and other financial or statistical
data included therein or omitted therefrom, as to which such counsel
expresses no belief and makes no statement), at the time such
Registration Statement or any such amendment became effective, 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 statement
therein not misleading, (ii) the Final Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and
other financial or statistical data included therein or omitted
therefrom, as to which such counsel expresses no belief and makes no
statement), at the time the Final Prospectus was issued, at the time any
such amended or supplemented Final Prospectus was issued or at the
Closing Date or any Date of Delivery, as applicable, included or includes
an untrue statement of a material fact of 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, or
(iii) the documents included in the Disclosure Package (other than the
financial statements and schedules and other financial or statistical
data included therein or omitted therefrom, as to which such counsel
expresses no belief and makes no statement), as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statement therein, in the
light of circumstances under which they were made, not misleading. With
respect to statements contained in the Disclosure Package, any statement
contained in any of the constituent documents shall be deemed to be
modified or superseded to the extent that
23
any information contained in subsequent constituent documents modifies or
replaces such statement.
In rendering such opinion, such counsel (A) may limit their opinion to
the Federal laws of the United States, the laws of the State of New York,
the General Corporation Law of the State of Delaware, the Limited
Liability Company Act of the State of Delaware and the General
Corporation Law of the State of Maryland and (B) may rely as to matters
of fact, to the extent they deem proper, on certificates of officers of
the Company or any Subsidiary Guarantors and public officials. References
to the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date or any Date of Delivery, as applicable.
(II) Foley & Lardner LLP, special counsel for the Company, to have
furnished the Representative their opinion, dated the Closing Date and
each Date of Delivery, as applicable, and addressed to the Representative
to the effect that:
(i) each of the Company and the Subsidiary Guarantors other
than the DMNY Subsidiary Guarantors (the "Remaining Subsidiary
Guarantors") has been duly incorporated or otherwise formed and is
validly existing in good standing under the laws of the jurisdiction
in which it incorporated or formed, with full corporate, partnership
or limited liability company power and authority to own or lease, as
the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Final
Prospectus;
(ii) the issuance of the 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 under any document
filed as an exhibit to the Company's Form 10-K as filed with the
Commission for the fiscal year ended December 31, 2005;
(iii) (A) the Indenture has been duly authorized, executed and
delivered by the Company and each Remaining Subsidiary Guarantor;
and (B) the Securities have been duly authorized; and (C) the
Guarantees to which the Remaining Subsidiary Guarantors are a party
have been duly and validly authorized by the Remaining Subsidiary
Guarantors;
(iv) the statements included in the Final Prospectus under the
heading "Description of Capital Stock," insofar as such statements
purport to summarize legal matters, agreements, documents or
proceedings discussed therein, have been reviewed by such counsel
and are correct in all material respects;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Company and the Remaining Subsidiary Guarantors have
all requisite corporate, partnership or limited liability company
power and authority, have taken all requisite corporate, partnership
and limited liability company action, and have received and are in
compliance with all governmental and judicial authorizations,
approvals and orders which, to the actual knowledge of
24
such counsel, are applicable to the Company and any Remaining
Subsidiary Guarantor, necessary to enter into and perform this
Agreement, the Indenture, the Securities, and the Guarantees; and
(vii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body under the laws of
the States of Arizona, Florida, Michigan, Minnesota, Nevada and
Texas is required in connection with the execution and delivery of
this Agreement by the Company or any Remaining Subsidiary Guarantor,
the performance of the obligations hereunder, or under the
Indenture, the Securities, and the Guarantees, except such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement, the
Disclosure Package and in the Final Prospectus and such other
approvals as have already been obtained.
In rendering such opinion, such counsel may (A) limit their opinion to the
laws of the States of Arizona, Florida, Michigan, Minnesota, Nevada and
Texas, and (B) as to matters of fact, to the extent they deem proper, rely
on certificates of responsible officers of the Company and each of the
Subsidiary Guarantors and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date or any Date of Delivery, as applicable.
(c) The Representative shall have received from Mayer, Brown, Rowe &
Maw LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and each Date of Delivery, as applicable, and addressed to
the Representative, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure
Package, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representative may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date and each Date of Delivery, as applicable,
to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Disclosure Package, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date or the
Date of Delivery, as applicable, with the same effect as if made on
the Closing Date or such Date of Delivery and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date or such Date of Delivery;
25
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive
of any supplement thereto).
(e) At the Applicable Time, on the Closing Date and on each Date of
Delivery, the Company shall have requested and caused Ernst & Young LLP to
furnish to the Representative one or more letters, dated respectively as
of the Applicable Time, as of the Closing Date and as of each Date of
Delivery, in form and substance satisfactory to the Representative, of the
type described in AICPA Statement on Auditing Standards No. 72. References
to the Final Prospectus in this Section 6(e) include any amendment or
supplement thereto at the date of the applicable letter.
(f) Subsequent to the Applicable Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive of
any amendment thereof), the Disclosure Package (exclusive of any
supplement thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus (exclusive
of any supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Representative,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Applicable Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given or announcement
made of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of
the possible change.
(h) The Securities shall be eligible for clearance and settlement
through The Depositary Trust Company.
(i) On the Closing Date and as of each Date of Delivery, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may
26
require for the purpose of enabling them to pass upon the issuance and
sale of the 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 Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representative and counsel for
the Underwriters.
(j) The sale of the Securities hereunder shall not be enjoined
(temporarily or permanently), in whole or in part, on the Closing Date or
on any Date of Delivery.
(k) Subsequent to the date of the most recent financial statements
in the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto after the date hereof), other than as
described in the Disclosure Package and the Final Prospectus or
contemplated hereby or thereby, neither the Company nor any of its
subsidiaries shall have incurred any liabilities or obligations, direct or
contingent not in the ordinary course of business that are material to the
Company and its subsidiaries, taken as a whole, or entered into any
transactions not in the ordinary course of business that are material to
the business, condition (financial or other) or results of operations or
prospects of the Company, taken as a whole, and there shall not have been
any adverse change in the capital stock or long-term indebtedness of the
Company or any of its subsidiaries that is material to the business,
condition (financial or other) or results of operations or prospects of
the Company and its subsidiaries, taken as a whole.
(l) On the Closing Date and on each Date of Delivery, the Securities
shall be rated at least Baa3 by Moody's Investor's Service Inc. and BBB-
by Standard & Poor's Corporation, and the Company shall have delivered to
the Underwriters a letter, dated the Closing Date or the Date of Delivery,
as applicable, from each such rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Securities have such
ratings; and since the date hereof, there shall not have been any decrease
in the rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(m) Subsequent to the date of the most recent financial statements
in the Disclosure Package and the Final Prospectus and except as stated
therein (exclusive of any amendment or supplement thereto after the date
hereof), the conduct of the business and operations of the Company shall
not have been interfered with by strike, fire, flood, hurricane, accident
or other calamity (whether or not insured) or by any court or governmental
action, order or decree, and the properties of the Company shall not have
sustained any loss or damage (whether or not insured) as a result of any
such occurrence, except any such interference, loss or damage which would
not, individually or in the aggregate, have a Material Adverse Effect.
(n) Each of the Company and the Trustee shall have entered into the
Indenture, and each of the Subsidiary Guarantors shall have entered into
the Guarantees, in each
27
case in form and substance satisfactory to the Representative and counsel
to the Underwriters.
(o) Prior to the Closing Date or any Date of Delivery, the Company
shall have furnished to the Representative such further information,
certificates and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date or the Date of Delivery, as
applicable, by the Representative. Notice of such cancellation shall be given to
the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Mayer, Brown, Rowe & Maw LLP, counsel for the
Underwriters, at 1675 Broadway, New York, New York 10019, on the Closing Date or
the Date of Delivery, as applicable.
7. Payment of Expenses. Whether or not the offering of the
Securities or any of the transactions contemplated in this Agreement or the
Disclosure Package and Final Prospectus are consummated or this Agreement is
terminated, to pay (i) all costs, expenses, fees and taxes incidental to and in
connection with: (A) the preparation, printing, filing and distribution of the
Registration Statement, the Disclosure Package, any Preliminary Prospectus, the
Final Prospectus and any Issuer Free Writing Prospectus and all amendments and
supplements thereto (including, without limitation, financial statements and
exhibits), and all other agreements, memoranda, correspondence and other
documents prepared and delivered in connection herewith, (B) the negotiation,
printing, processing and distribution (including, without limitation, word
processing and duplication costs) and delivery of, each of the documents related
to the offering of the Securities, (C) the preparation, issuance and delivery of
the Securities, (D) the qualification of the Securities for offer and sale under
the securities or Blue Sky laws of the several states (including, without
limitation, the fees and disbursements of the Underwriter's counsel relating to
such registration or qualification) and (E) furnishing such copies of the
Registration Statement, the Disclosure Package, any Preliminary Prospectus and
the Final Prospectus, and all amendments and supplements thereto, as may
reasonably be requested for use by the Underwriters, (ii) all reasonable fees
and expenses of the counsel, accountants and any other experts or advisors
retained by the Company, (iii) all fees and expenses (including reasonable fees
and expenses of counsel) of the Company in connection with approval of the
Securities by DTC for "book-entry" transfer, (iv) all fees charged by rating
agencies in connection with the rating of the Securities, (v) all fees and
expenses (including reasonable fees and expenses of counsel) of the Trustee,
(vi) all fees, disbursements and out-of-pocket expenses incurred by the
Underwriters in connection with its services to be rendered hereunder including,
without limitation, travel and lodging expenses, word processing charges,
messenger and duplicating services, facsimile expenses and other customary
expenditures, but not including the fees and disbursements of Mayer, Brown, Rowe
& Maw LLP, counsel to the Underwriters, (vii) the fees of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with
28
its review of the Offering, if any, (viii) fees, if any, relating to the
registration of the Securities under the Exchange Act and (ix) all other costs
and expenses incident to the performance by the Company of its obligations
hereunder.
8. Indemnification and Contribution. (a) The Company and the
Subsidiary Guarantors, jointly and severally, agree to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Registration Statement, any Preliminary Final Prospectus,
the Final Prospectus, the Disclosure Package or any Issuer Free Writing
Prospectus, or in any amendment thereof or supplement thereto, (B) any "issuer
information" used or referred to in any "free writing prospectus" (as defined in
Rule 405 under the Act) used or referred to by the Underwriter, (C) any "road
show" (as defined in Rule 433 under the Act) not constituting an Issuer Free
Writing Prospectus or (D) any blue sky application or other document prepared or
executed by the Company or any Subsidiary Guarantor (or based upon an written
information furnished by the Company or any Subsidiary Guarantor) specifically
for the purpose of qualifying any or all of the notes under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"); or arise out of
or are based upon the omission or alleged omission to state in any such
documents a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representative specifically for inclusion therein.
This indemnity agreement will be in addition to any liability that the Company
may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representative
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth (i) in the last paragraph of the cover page regarding delivery of the
Securities and, (ii) under the heading "Underwriting" (a) the list of
Underwriters and their respective participation in the sale of the Securities,
(b) the sentences related to concessions and reallowances and (c) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
any Preliminary Final Prospectus and the
29
Final Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Subsidiary Guarantors and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company, the Subsidiary Guarantors and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Subsidiary Guarantors on the one hand
and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to
30
the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company, the Subsidiary Guarantors and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company or the Subsidiary
Guarantors on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company and
the Subsidiary Guarantors shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or the Subsidiary Guarantors on
the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, the Subsidiary
Guarantors and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date or the Date of Delivery, as applicable, shall be
postponed for such period, not exceeding five Business Days, as the
Representative shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
31
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) there shall have
occurred a material disruption in clearance or settlement systems in the United
States, (iii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iv) there shall have occurred any material
adverse change in the financial markets in the United States or the markets for
investment grade securities in the United States outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representative, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. No Advisory or Fiduciary Relationship. The Company acknowledges
and agrees that (a) the purchase and sale of the Securities pursuant to this
Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm's-length
commercial transaction between the Company on the one hand, and the
Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction the Underwriters
are and have been acting solely as a principal and is not the agent or fiduciary
of the Company, or its stockholders, creditors, employees or any other party,
(c) the Underwriters have not assumed nor will they assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether the
Underwriters have advised or are currently advising the Company or any of its
affiliates on other matters) and the Underwriters do not have any obligation to
the Company with respect to the offering contemplated hereby except the
obligations expressly set forth in this Agreement, (d) the Underwriters and its
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (e) the Underwriters have
not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
32
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed to Wachovia Capital Markets, LLC (fax: (704) 383-0661)
and confirmed to it at One Wachovia Center, DC-7, 301 South College Street,
Charlotte, NC 28288-0602, Attention: Debt Capital Markets (tel: (704) 715-8305)
or, if sent to the Company, will be mailed, delivered or telefaxed to Pulte
Homes, Inc. (fax: (248) 433-4598) and confirmed to it at (248) 647-2750,
attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Applicable Time" shall mean the time when sales of the Securities
were first made on the date of this Agreement.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean collectively, (i) the most recent
preliminary prospectus, (ii) the final term sheet required to be filed
with the Commission pursuant to Rule 433(d) under Section 5(a) of this
Agreement, (iii) the Issuer Free Writing Prospectuses, if any, identified
on Schedule V hereto and (iv) any other Free Writing
33
Prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective under the Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Final Prospectus" shall mean the Final Prospectus Supplement,
together with the Basic Prospectus.
"Final Prospectus Supplement" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Applicable Time, together with the Basic Prospectus.
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405 under the Act.
"Issuer Free Writing Prospectus" shall mean any "issuer free writing
prospectus," as defined in Rule 433 under the Act.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Applicable Time and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date or prior to any Date of
Delivery, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.
"Rule 163", "Rule 164", "Rule 172", "Rule 401", "Rule 405", "Rule
415", "Rule 424", "Rule 430A", "Rule 433" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
34
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the parties hereto.
Very truly yours,
PULTE HOMES, INC.
By: /s/ Steven M. Cook
------------------------------------
Name: Steven M. Cook
Title: Vice President, General Counsel
and Secretary
36
By: /s/ Steven M. Cook
----------------------------------------
Name: Steven M. Cook
Title: Vice President, General Counsel
and Secretary
On behalf of the several Subsidiary
Guarantors named in Schedule III to the
foregoing Agreement and identified with an
asterisk*.
By: /s/ Bruce E. Robinson
----------------------------------------
Name: Bruce E. Robinson
Title: Vice President, Treasurer
and Secretary
On behalf of the several Subsidiary
Guarantors named in Schedule III to the
foregoing Agreement and identified with two
asterisks**.
37
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Wachovia Capital Markets, LLC
By: /s/ Jim Stenson
--------------------------
Name: Jim Stenson
Title: Managing Director
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
38
SCHEDULE I
Underwriting Agreement dated May 10, 2006
Registration Statement No. 333-133876
Representative & Book-Running Manager: Wachovia Capital Markets, LLC
Co-Managers:
Citigroup Global Markets, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Securities LLC
Title, Purchase Price and Description of 2046 Senior Notes:
Title: 7.375% Senior Notes due 2046
Principal Amount of Initial Securities: $150,000,000
Principal Amount of Option Securities: $22,500,000
Purchase Price of Initial Securities (include accrued interest or
amortization, if any): $145,275,000
Sinking fund provisions: None
Redemption provisions: See Final Prospectus or Disclosure Package
Other provisions: See Final Prospectus or Disclosure Package
Closing Date, Time and Location for the Initial Securities:
May 17, 2006, at 10:00 a.m. at the offices of Sidley Austin
LLP, counsel to the Company, at One South Dearborn
Street, Chicago, Illinois 60603
Type of Offering: Rule 415
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s): 30 days after the Applicable Time
Modification of items to be covered by the letter from Ernst & Young LLP,
delivered pursuant to Section 6(e) at the Applicable Time: None
SCHEDULE II
Maximum
Number of Initial Number of Option
Securities Securities
Underwriters to be Sold to be Sold
- ------------ -------------------- --------------------
Wachovia Capital Markets, LLC........................................ $ 36,150,000 $ 5,422,500
Citigroup Global Markets, Inc........................................ $ 35,250,000 $ 5,287,500
Merrill Lynch, Pierce, Fenner & Smith Incorporated................... $ 35,250,000 $ 5,287,500
UBS Securities LLC................................................... $ 35,250,000 $ 5,287,500
Banc of America Securities LLC....................................... $ 900,000 $ 135,000
Barclays Capital Inc................................................. $ 900,000 $ 135,000
BNP Paribas Securities Corp.......................................... $ 900,000 $ 135,000
Comerica Securities Inc.............................................. $ 900,000 $ 135,000
Deutsche Bank Securities Inc......................................... $ 900,000 $ 135,000
Fifth Third Securities, Inc.......................................... $ 900,000 $ 135,000
J.P. Morgan Securities Inc........................................... $ 900,000 $ 135,000
LaSalle Financial Services, Inc...................................... $ 900,000 $ 135,000
SunTrust Capital Markets, Inc........................................ $ 900,000 $ 135,000
Total....................................................... $150,000,000 $22,500,000
SCHEDULE III
List of Subsidiary Guarantors
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, LLC**
HARRISON HILLS, LLC**
ISLAND WALK DEVELOPMENT COMPANY**
PB VENTURE L.L.C.*
PBW CORPORATION**
PC/BRE DEVELOPMENT L.L.C.*
PC/BRE SPRINGFIELD L.L.C.*
PC/BRE VENTURE L.L.C.*
PC/BRE 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 BUILDING SYSTEMS HOLDING COMPANY LLC**
PULTE COMMUNITIES NJ, LIMITED PARTNERSHIP**
PULTE DEVELOPMENT CORPORATION**
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.**
TERRAVITA CORP.**
TERRAVITA HOME CONSTRUCTION CO.**
WIL CORPORATION**
WILBEN, LLLP**
SCHEDULE IV
State of
DMNY Subsidiary Guarantor Organization
- ------------------------- -------------
Del Webb Corporation Delaware
DiVosta Homes, L.P. Delaware
Harrison Hills, LLC Maryland
PC/BRE Development L.L.C. Delaware
PC/BRE Springfield L.L.C. Delaware
PC/BRE Venture L.L.C. Delaware
PC/BRE Whitney Oaks L.L.C. Delaware
PC/BRE Winfield L.L.C. Delaware
Wilben, LLLP Maryland