EXHIBIT 4(p)
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PULTE HOMES, INC.
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INDENTURE SUPPLEMENT
DATED AS OF JANUARY 16, 2004
TO
INDENTURE
DATED AS OF OCTOBER 24, 1995
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X.X. XXXXXX TRUST COMPANY, N.A.
TRUSTEE
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SENIOR DEBT SECURITIES
INDENTURE SUPPLEMENT, dated as of January 16, 2004, among PULTE HOMES,
INC., a Michigan corporation ("Company"), located at 000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, X.X. XXXXXX TRUST COMPANY,
N.A., as Trustee ("Trustee"), and the Company's direct and indirect wholly-owned
domestic homebuilding subsidiaries set forth on the signature pages hereto
(collectively, the "Guarantors").
RECITALS
The Company and certain Guarantors have heretofore executed and
delivered to the Trustee that certain Indenture, dated as of October 24, 1995
(hereinafter the "Original Indenture" and as amended by the Indenture Supplement
dated as of August 27, 1997, the Indenture Supplement dated as of March 20,
1998, the Indenture Supplement dated as of January 31, 1999, two Indenture
Supplements each dated as of April 3, 2000, the Indenture Supplement dated as of
February 21, 2001, the Indenture Supplement dated as of July 31, 2001, the
Indenture Supplement dated as of August 6, 2001, the Indenture Supplement dated
as of June 12, 2002, the Indenture Supplement dated as of February 3, 2003, the
Indenture Supplement dated as of May 22, 2003 and this Indenture Supplement,
hereinafter the "Indenture"), pursuant to which one or more series of unsecured
debenture, notes or other evidences of indebtedness of the Company (hereinafter,
the "Securities") may be issued from time to time.
Section 901(6) of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders to make provisions to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301 of the Indenture.
Pursuant to the terms of Section 901(6) of the Indenture, the Company
desires to provide for the establishment of the form and terms of a new series
of its Securities to be known as its 5.250% Senior Notes due 2014 (hereinafter,
the "Notes").
Section 901(9) of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of the Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Indenture Supplement is authorized or
permitted by the Indenture and (ii) a copy of the resolutions of its Board of
Directors certified by its Secretary, pursuant to which this Indenture
Supplement has been authorized.
All things necessary to make this Indenture Supplement a valid agreement
of the Company and the Trustee and a valid amendment of and supplement to the
Indenture have been done.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the mutual covenants and
agreements contained herein, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in
this Indenture Supplement or in the form of Note attached as Exhibit A hereto or
otherwise clearly required by the context hereof or thereof, all capitalized
terms used and not defined in this Indenture Supplement that are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture. For all purposes of this Indenture Supplement:
"Certificated Note" has the meaning set forth in Section 2.04 hereof.
"Closing Date" means January 16, 2004.
"Commission" means the Securities and Exchange Commission and any
successor thereto.
"Company" has the meaning set forth in the preamble.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act, specified for
that purpose as contemplated by Section 301 or any successor clearing agency
registered under the Exchange Act as contemplated by Section 305, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Note" has the meaning set forth in Section 2.04 hereof.
"Global Security" means a Security bearing the legend specified in
Section 204 (as added hereby) evidencing all or part of a series of Securities,
issued to the Depositary for such series or its nominee, and registered in the
name of such Depositary or nominee. Unless otherwise specified, references to a
permanent global security in this Indenture shall include any Global Security.
"Global Securities Legend" means the legend set forth on the form of
Note attached as Exhibit A hereto.
"Guarantors" has the meaning set forth in the preamble.
"Interest Payment Date" has the meaning set forth in Section 2.02
hereof.
"Indenture" has the meaning set forth in the recitals.
"Notes" means any of the Securities of the series designated in the
third paragraph of the recitals hereof and Section 2.01 hereof that are
authenticated and delivered under the Indenture. For all purposes of the
Indenture, the term "Notes" shall include the Notes initially issued on the
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Closing Date and any other Notes issued after the Closing Date under the
Indenture. For purposes of the Indenture, all Notes shall vote together and
otherwise constitute a single series of Securities under the Indenture.
"Original Indenture" has the meaning set forth in the recitals.
"Regular Record Date" has the meaning set forth in Section 2.02 hereof.
"Registrar" has the meaning set forth in Section 4.03 hereof.
"Securities" has the meaning set forth in the recitals.
"Trustee" has the meaning set forth in the preamble.
The parties hereto acknowledge that certain terms are defined in both
the Original Indenture and in this Indenture Supplement. The parties hereto
hereby agree that, unless otherwise expressly stated or the context otherwise
requires, any term which is defined in both the Original Indenture and in this
Indenture Supplement, when used with respect to or in the certificates
evidencing the Notes, shall have the meaning set forth in this Indenture
Supplement.
ARTICLE II
TERMS OF THE NOTES
SECTION 2.01. Establishment of the Notes. There is hereby authorized and
established a series of Securities designated the 5.250% Senior Notes due 2014,
limited in aggregate principal amount to $500,000,000 (except as provided in
Section 301(2) of the Original Indenture); provided that the Company may,
without the consent of the Holders of the Outstanding Notes, "reopen" this
series of Securities so as to increase the aggregate principal amount of Notes
Outstanding in compliance with the procedures set forth in the Indenture,
including Sections 301 and 303 thereof, so long as any such additional Notes
have the same tenor and terms (including, without limitation, rights to receive
accrued and unpaid interest) as the Notes then Outstanding.
SECTION 2.02. Terms of the Notes. The Stated Maturity on which the
principal of the Notes shall be due and payable shall be January 15, 2014.
The principal of the Notes shall bear interest at the rate of 5.250% per
annum from January 16, 2004 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in
arrears on January 15 and July 15 (each, an "Interest Payment Date") in each
year, commencing July 15, 2004, to the Persons in whose names the Notes (or one
or more Predecessor Securities) are registered at the close of business on the
January 1 or July 1 immediately preceding such Interest Payment Dates (each, a
"Regular Record Date") regardless of whether such Regular Record Date is a
Business Day. Any overdue principal of and premium, if any, on the Notes and any
overdue installment of interest on the Notes shall, to the extent permitted by
law, bear interest at the rate of 5.250% per annum.
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Interest on the Notes shall be calculated on the basis of a 360-day year
of twelve 30-day months.
No additional amounts will be payable on any Notes held by a Person who
is a non-United States citizen in respect of any tax, assessment or governmental
charge withheld or deducted.
The Borough of Manhattan, in The City of New York is hereby designated
as a Place of Payment for the Notes; and the place where the principal of and
interest on the Notes shall be payable, where Notes may be surrendered for
registration of transfer and exchange, and where notices and, if other than in
the manner provided in Section 105 of the Original Indenture, demands to or upon
the Company in respect of the Notes may be served, shall be the office or agency
maintained by the Company for that purpose in the Borough of Manhattan, in The
City of New York, which initially shall be the office of the Trustee located at
0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
The Notes are subject to redemption at the option of the Company as
provided in the form of Note attached hereto as Exhibit A and in the Indenture.
The Notes shall not have the benefit of a sinking fund.
The Notes shall be subject to the restricted covenants described in
Sections 1006 and 1007 and Article 8 of the Indenture.
The Notes shall be subject to defeasance and covenant defeasance at the
option of the Company as provided in Sections 1401, 1402 and 1403 of the
Indenture; provided that, without limitation to the provisions of Sections 1401,
1402 and 1403 of the Original Indenture, the provisions of Section 308 and of
Article III of this Indenture Supplement shall survive any such defeasance or
covenant defeasance and remain in full force and effect.
The Notes shall have such other terms and provisions as are set forth in
the form of Note attached hereto as Exhibit A (all of which incorporated by
reference in and made a part of this Indenture Supplement as if set forth in
full at this place).
SECTION 2.03. Denominations. The Notes shall be issued in denominations
of $1,000 and integral multiples thereof.
SECTION 2.04. Form. The Notes shall be in substantially the form set
forth in Exhibit A hereto, with such changes therein as may be authorized by any
officer of the Company executing the Notes by manual or facsimile signature,
such approval to be conclusively evidenced by the execution thereof by such
officer.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture Supplement, and the Company
and the Trustee, by their execution and delivery of this Indenture Supplement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture Supplement, the provisions of this Indenture Supplement shall
govern and be controlling.
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The Notes shall be issued as Registered Securities without coupons.
The Notes shall be issued initially in the form of one or more permanent
Global Securities ("Global Notes"). The initial Depositary for the Global Notes
shall be The Depository Trust Company. The Global Notes shall be registered in
the name of the Depositary or a nominee of the Depositary and deposited with the
Trustee, as custodian for the Depositary. Notes may be issued in certificated
form without interest coupons only to the extent provided by the Indenture and
this Indenture Supplement ("Certificated Notes"). Except as provided in Section
4.02 of this Indenture Supplement, owners of beneficial interests in Global
Notes will not be entitled to receive physical delivery of Certificated Notes.
Holders of beneficial interests shall have no rights under the Indenture
with respect to any Global Security held on their behalf by the Depositary or by
the Trustee as Securities Custodian or under such Global Security, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its holders of
beneficial interests, the operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a beneficial interest in any
Global Security.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
ORIGINAL ISSUE OF NOTES
SECTION 4.01. Notes. Notes in the aggregate principal amount of
$500,000,000 may be executed by the Company and delivered to the Trustee for
authentication and the Trustee shall thereupon authenticate and, on the Closing
Date, deliver said Notes upon a Company Order without any further action by the
Company.
SECTION 4.02. Certificated Notes.
(a) A Global Note deposited with the Depositary or with the Trustee as
Trustee pursuant to Section 2.04 of this Indenture Supplement shall be
transferred to the beneficial owners thereof in the form of Certificated Notes
in an aggregate principal amount equal to the principal amount of such Global
Note, in exchange for such Global Note, only if such transfer complies with
Section 305 of the Original Indenture and Section 4.03 of this Indenture
Supplement and (i) the Company notifies the Trustee that the Depositary is no
longer willing or able to act as a depositary or clearing system for the Notes
or the Depositary ceases to be a "clearing agency" registered under the Exchange
Act, and a successor depositary or clearing system is not appointed by the
Company within 90 days of such notice or cessation, (ii) upon the
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occurrence and continuation of an Event of Default, or (iii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of Certificated Notes under the Indenture rather than have the Notes
represented by a Global Security.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section 4.02 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal
amount of Certificated Notes of authorized denominations. Any portion of a
Global Note transferred pursuant to this Section 4.02 shall be executed,
authenticated and delivered only in denominations of $1,000 of principal amount
and any integral multiple thereof and registered in such names as the Depositary
shall direct.
(c) The registered Holder of a Global Note may grant proxies and
otherwise authorize any Person, including holders of beneficial interests, to
take any action which a Holder is entitled to take under the Indenture or the
Notes.
(d) In the event of the occurrence of any of the events specified
in Section 4.02(a)(i), (ii) or (iii) of this Indenture Supplement, the Company
will promptly make available to the Trustee a reasonable supply of Certificated
Notes in fully registered form without interest coupons.
SECTION 4.03. Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When Certificated
Notes are presented to the Company's registrar with respect to the Notes (the
"Registrar") with a request:
(i) to register the transfer of such Certificated Notes;
or
(ii) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes of other authorized
denominations, the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Certificated Notes
surrendered for transfer or exchange:
(A) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(B) are accompanied by the following additional
information and documents, as applicable:
(x) if such Certificated Notes are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (in the form set forth on the reverse side of
the Note); or
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(y) if such Certificated Notes are being
transferred to the Company, a certification to that
effect (in the form set forth on the reverse side of
the Note).
(b) Restrictions on Transfer of a Certificated Note for a
Beneficial Interest in a Global Note. A Certificated Note may not be exchanged
for a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Certificated
Note, duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, together with written
instructions directing the Trustee to make, or to direct the Trustee to make, an
adjustment on its books and records with respect to such Global Note to reflect
an increase in the aggregate principal amount of the Notes represented by the
Global Note, such instructions to contain information regarding the Depositary
account to be credited with such increase, then the Trustee shall cancel such
Certificated Note and cause, or direct the Trustee to cause, in accordance with
the standing instructions and procedures existing between the Depositary and the
Trustee, the aggregate principal amount of Notes represented by the Global Note
to be increased by the aggregate principal amount of the Certificated Note to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Note equal to
the principal amount of the Certificated Note so canceled. If no Global Notes
are then outstanding and the Global Note has not been previously exchanged for
Certificated Notes pursuant to Section 4.02 of this Indenture Supplement, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Note in the
appropriate principal amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depositary, in
accordance with this Indenture Supplement (including applicable
restrictions on transfer set forth herein, if any) and the procedures of
the Depositary therefor. A transferor of a beneficial interest in a
Global Note shall deliver a written order given in accordance with the
Depositary's procedures containing information regarding the participant
account of the Depositary to be credited with a beneficial interest in
such Global Note or another Global Note and such account shall be
credited in accordance with such order with a beneficial interest in the
applicable Global Note and the account of the Person making the transfer
shall be debited by an amount equal to the beneficial interest in the
Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Note to a beneficial interest in another Global
Note, the Registrar shall reflect on its books and records the date and
an increase in the principal amount of the Global Note to which such
interest is being transferred in an amount equal to the principal amount
of the interest to be so transferred, and the Registrar shall reflect on
its books and records the date and a corresponding decrease in the
principal amount of Global Note from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Indenture
Supplement (other than the provisions set forth in Section 4.02 of this
Indenture Supplement), a Global Note
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may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(d) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for
Certificated Notes, transferred, redeemed, repurchased or canceled, such Global
Note shall be returned by the Depositary to the Trustee for cancellation or
retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Certificated Notes,
transferred in exchange for an interest in another Global Note, redeemed,
repurchased or canceled, the principal amount of Notes represented by such
Global Note shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the custodian for such Global Note) with
respect to such Global Note, by the Trustee or the custodian, to reflect such
reduction.
(e) Obligations with Respect to Transfers of Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Certificated
Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge payable upon
exchange or transfer pursuant to Sections 906, 1107 and 1305 of the
Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent or the
Registrar may deem and treat the Person in whose name a Note is
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all
other purposes whatsoever, whether or not such Note is overdue, and none
of the Company, the Trustee, the Paying Agent or the Registrar shall be
affected by notice to the contrary.
(iv) The Company shall not be required to make and the
Registrar need not register transfers or exchanges of Notes selected for
redemption (except, in the case of Notes to be redeemed in part, the
portion thereof not to be redeemed) or any Notes for a period of 15 days
before the mailing of a notice of redemption of Notes to be redeemed.
(v) All Notes issued upon any transfer or exchange pursuant to
the terms of this Indenture Supplement shall evidence the same debt and
shall be entitled to the same benefits under the Indenture as the Notes
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Note, a member of, or a participant in
the Depositary or any other
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Person with respect to the accuracy of the records of the Depositary or
its nominee or of any participant or member thereof, with respect to any
ownership interest in the Notes or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption or
repurchase) or the payment of any amount, under or with respect to such
Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made
only to the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Note). The rights of beneficial owners
in any Global Note shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture Supplement or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants, members or
beneficial owners in any Global Note) other than to require delivery of
such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture Supplement, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Ratification. This Indenture Supplement shall be deemed
part of the Indenture in the manner and to the extent herein provided. Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect.
SECTION 5.02. Counterparts. This Indenture Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 5.03. Governing Law. This Indenture supplement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to the principles of conflicts of laws.
SECTION 5.04. Trustee. The Trustee makes no representation as to the
validity or sufficiency of this Indenture Supplement. The recitals contained
herein shall be taken as the statements of the Company and the Trustee assumes
no responsibility for their correctness.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PULTE HOMES, INC.
[SEAL] By:
--------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION
[SEAL] By:
--------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
STATE OF MICHIGAN )
: ss.:
COUNTY OF )
On the __________ of _______________, 2004, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he or she is ____________________ of PULTE HOMES, INC. one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
______________
Notary Public
STATE OF MICHIGAN )
: ss.:
COUNTY OF )
On the __________ of _______________, 2004, before me personally came
____________________, to me known, who being by me duly sworn, did depose and
say that he or she is ____________________ of X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, one of the corporations described in and which executed
the foregoing instrument; that he or she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
or she signed his or her name thereto by like authority.
______________
Notary Public
EXHIBIT A
FORM OF NOTE
Each Global Note shall bear a legend substantially in the form set forth
in this paragraph and substantially in the form set forth in the next succeeding
paragraph (collectively, the "Global Securities Legend"). Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment hereon is made to Cede & Co.
or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of the Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances.
PULTE HOMES, INC.
5.250% SENIOR NOTES DUE 2014
$_______________
CUSIP No. 000000XX0
No. _______
PULTE HOMES, INC., a corporation duly organized and existing under the
laws of Michigan (herein called the "Company", which term includes any successor
Person under the Indenture referred to below), for value received, hereby
promises to pay to _________________, or registered assigns, the principal sum
indicated on Schedule A hereto on January 15, 2014 and to pay interest thereon
from January 16, 2004, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on January
15 and July 15 in each year, commencing on July 15, 2004, at the rate of 5.250%
per annum, until the principal hereof is paid or made available for payment and
(to the extent that the payment of such interest shall be legally enforceable)
at the same rate per annum on any overdue principal and premium, if any, and on
any overdue installment of interest. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be January 1 or July 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture. Payment of the
principal of (and premium, if any) and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company,
payment of interest may be made by United States dollar check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account maintained by the payee with
a bank located in the United States.
The payment of, and any premium and interest on, the Notes shall not be
determined with reference to any index or formula.
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Payments of interest hereon with respect to any Interest Payment Date
will include interest accrued to but excluding such Interest Payment Date.
Interest on this Security shall be computed on the basis of a 360-day year of
twelve 30-day months.
This Security is a Global Security within the meaning of the Indenture
and is registered in the name of the Depositary for this series of Securities or
a nominee of the Depositary. Subject to the terms of the Indenture, beneficial
interests in this Security shall be held through the book-entry facilities of
the Depositary, and such beneficial interests shall be held in minimum
denominations of $1,000 and integral multiples thereof. As long as this Security
is registered in the name of a Depositary or its nominee, the Company will make,
or will cause the Trustee to make, payments of principal of and premium, if any,
and interest on this Security by wire transfer of immediately available funds to
such Depositary or its nominee. Notwithstanding the above, the final payment on
this Security will be made only upon presentation and surrender of this Security
at an office or agency maintained by the Company for that purpose in any Place
of Payment for the Securities of this series.
This Security is one of a duly authorized issue of securities of the
Company (hereinafter called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of October 24, 1995 (as amended by the
Indenture Supplement dated as of August 27, 1997, the Indenture Supplement dated
as of March 20, 1998, the Indenture Supplement dated as of January 31, 1999, two
Indenture Supplements each dated as of April 3, 2000, the Indenture Supplement
dated as of February 21, 2001, the Indenture Supplement dated July 31, 2001, the
Indenture Supplement dated August 6, 2001, the Indenture Supplement dated as of
June 12, 2002 the Indenture Supplement dated as of February 3, 2003, the
Indenture Supplement dated as of May 22, 2003 and the Indenture Supplement dated
as of the date hereof (the "January 2004 Indenture Supplement") (as so amended,
the "Indenture")), each between the Company and X.X. Xxxxxx Trust Company,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, initially limited
in aggregate principal amount to $500,000,000; provided that the aggregate
principal amount of the Securities of this series which may be outstanding may
be increased by the Company upon the terms and subject to the conditions set
forth in the January 2004 Indenture Supplement. The Securities of this series
are issuable only in registered form, without coupons, in the denominations
specified in the January 2004 Indenture Supplement. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested by
the Holder surrendering the same.
This Security will be redeemable, in whole or in part, from time to time
at the option of the Company, on any date ("Redemption Date") at a redemption
price equal to the greater of (a) 100% of their principal amount of this
Security to be redeemed and (b) the present value of the Remaining Scheduled
Payments (as hereinafter defined) of principal and interest thereon (exclusive
of interest accrued to such Redemption Date) discounted to such Redemption Date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the
-3-
Treasury Rate (as hereinafter defined) plus 25 basis points (0.25%), plus
accrued and unpaid interest on the principal amount being redeemed to such
Redemption Date; provided, however, that installments of interest on this
Security that are due and payable on an Interest Payment Date falling on or
prior to the relevant Redemption Date shall be payable to the Holders of this
Security, registered as such at the close of business on the relevant Regular
Record Date or Special Record Date, as the case may be, according to their terms
and the provisions of the Indenture.
If money sufficient to pay the redemption price of and accrued interest
on this Security to be redeemed is deposited with the Trustee on or before the
Redemption Date, on and after the Redemption Date interest will cease to accrue
on this Security (or such portions thereof) called for redemption and this
Security will cease to be outstanding.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of this Security to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice in pricing
new issues of corporate debt securities of comparable maturity to the remaining
term of this Security.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(1) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (2) if such release (or any successor release) is not
published or does to contain such price on such business day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means (A) Banc One Capital Markets, Inc.,
Citigroup Global Markets Inc., UBS Securities, LLC or one of the other
underwriters (or their respective affiliates which are Primary Treasury
Dealers), and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in the
United States (a "Primary Treasury Dealer"), we will substitute therefor another
Primary Treasury Dealer, and (B) any other Primary Treasury Dealer(s) selected
by us.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of is principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.
"Remaining Scheduled Payments" means, with respect to this Security, the
remaining scheduled payments of the principal thereof to be redeemed and
interest thereon that would be due after the related Redemption Date but for
such redemption; provided, however, that, if such Redemption Date is not an
Interest Payment Date with respect to this Security, the amount of the
-4-
next succeeding scheduled interest payment thereon will be reduced by the amount
of interest accrued thereon to such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
Notice of any redemption by the Company will be mailed at least 60 days
before any Redemption Date to the Trustee. If less than all the Securities of
this series is to be redeemed at the option of the Company, the Trustee shall
select the Securities to be redeemed in whole or in part by such method as the
Trustee deems fair and appropriate as provided in the Indenture.
This Security is not entitled to the benefit of a sinking fund or
mandatory redemption provisions.
If an Event of Default with respect to the Securities shall occur and be
continuing, the principal amount of all the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Securities. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Outstanding Securities, on behalf of the Holders of all Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the Outstanding Securities a direction inconsistent with
such request and shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of (or
premium, if any) or interest on this Security on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay
-5-
the principal of (and premium, if any) and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
In the event of any Change in Control Triggering Event in respect of the
Company occurring on or prior to maturity of the Securities, each Holder of
Securities will have the right, at the Holder's option, subject to the terms of
the Indenture, to require the Company to purchase all or any part (provided that
the principal amount is $1,000 or an integral multiple thereof) of such Holder's
Securities on the date that is 30 days after such Change in Control Triggering
Event (the "Change in Control Purchase Date") at a cash price equal to the
principal amount thereof plus accrued interest to the Change in Control Purchase
Date.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the January 2004
Indenture Supplement shall have the meanings assigned to them in the January
2004 Indenture Supplement and all other terms used in this Security and defined
elsewhere in the Indenture shall have the meanings assigned to them therein.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below, directly or through an Authenticating Agent, by
manual signature of an authorized signatory, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
[SIGNATURE PAGE FOLLOWS]
-6-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
PULTE HOMES, INC.
[SEAL] By
----------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------
Authorized Signature
-7-
ABBREVIATIONS
The following abbreviations, when used in the inscription above, shall
be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - ____________ Custodian ____________
(Cust) (Minor)
under the Uniform Gifts to Minors Act
____________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
_________________________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder(s) hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address Including Postal Zip Code of
Assignee)
________________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitute(s) and appoint(s)
________________________________________________________________________________
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
-8-
Dated:_____________
Signature Guaranteed:
___________________ ___________________
NOTICE: The signature(s) to this assignment must correspond with the name(s) as
written upon the within instrument in every particular, without alteration or
enlargement or any change whatever. The signature(s) must be guaranteed by an
eligible guarantor institution with membership in an approved signature
guarantee "medallion" program pursuant to Commission Rule 17Ad-15.
-9-
GUARANTEE
For value received, each of the undersigned hereby irrevocably and
unconditionally guarantees, jointly and severally, on a senior basis to the
Holder of this Security and to the Trustee, on behalf of the Holder, (i) the due
and punctual payment of the principal of, premium, if any, and interest on this
Security, when and as the same shall become due and payable, whether at Stated
Maturity, purchase upon Change in Control Triggering Event, by declaration of
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of, premium, if any, and interest, if any, on this Security,
to the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holder of this Security or the Trustee all in
accordance with the terms of this Security and the Indenture and (ii) in the
case of any extension of time of payment or renewal of this Security or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at Stated
Maturity, purchase upon Change in Control Triggering Event, by declaration of
acceleration or otherwise (the obligations in clauses (i) and (ii) hereof being
the "Guaranteed Obligations"). This Guarantee will not be valid or obligatory
for any purpose until the Trustee duly executes the certificate of
authentication on the Security upon which this Guarantee is endorsed.
Dated:
The Guarantors listed on the attached
Exhibit A
Attest:__________________________ By:__________________________________
-10-
EXHIBIT A TO GUARANTEE
ABACOA HOMES, INC.
AMERICAN TITLE OF THE PALM BEACHES CORPORATION.
ANTHEM ARIZONA L.L.C.
ASSET FIVE CORP.
ASSET SEVEN CORP.
XXXX'X XXXXX, L.L.C.
DEL X. XXXX FOOTHILLS CORPORATION
XXX XXXX CALIFORNIA CORP.
XXX XXXX COMMUNITIES, INC.
XXX XXXX COMMUNITIES OF ILLINOIS, INC. (FORMERLY, BELLASERA CORP.)
XXX XXXX CORPORATION
XXX XXXX GOLF CORP.
XXX XXXX HOME CONSTRUCTION, INC.
XXX XXXX LIMITED HOLDING CO.
XXX XXXX SOUTHWEST CO.
XXX XXXX TEXAS LIMITED PARTNERSHIP
XXX XXXX'X COVENTRY HOMES CONSTRUCTION CO.
XXX XXXX'X COVENTRY HOMES, INC.
XXX XXXX'X COVENTRY HOMES OF NEVADA, INC.
XXX XXXX'X SPRUCE CREEK COMMUNITIES, INC.
XXX XXXX'X SUNFLOWER OF TUCSON, INC.
DEVTEX LAND, L.P.
DIVOSTA HOMES, L.P.
DIVOSTA HOME SALES, INC. (FORMERLY, DIVOSTA BUILDING CORPORATION)
FLORIDA BUILDING PRODUCTS, INC.
FLORIDA CLUB HOMES, INC.
HAMMOCK RESERVE DEVELOPMENT COMPANY
XXXXXXXX HILLS, LLC
ISLAND WALK DEVELOPMENT COMPANY
ONE WILLOWBROOK L.L.C.
PB VENTURE L.L.C.
PBW CORPORATION
PC/BRE DEVELOPMENT L.L.C.
PC/BRE SPRINGFIELD L.L.C.
PC/BRE VENTURE L.L.C.
PC/BRE XXXXXXX XXXX L.L.C.
XX/XXX XXXXXXXX X.X.X.
XX0 CORPORATION
PH2 CORPORATION
PH3 CORPORATION
PH4 CORPORATION
PHT BUILDING MATERIALS LIMITED PARTNERSHIP
PN I, INC.
XX XX, INC.
-00-
XXXXX XXXXXXXXXXX XX, 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, X.X.
XXXXX HOMES TENNESSEE LIMITED PARTNERSHIP
PULTE-IN CORP.
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.
XXXX/ XXXXXXXXXXX HOMES, INC.
TERRAVITA CORP.
TERRAVITA HOME CONSTRUCTION CO.
VILLAGE WALK DEVELOPMENT COMPANY, INC.
WIL CORPORATION
AND WILBEN, LLLP
-12-
SCHEDULE A
The initial principal amount of this Global Security is $______________.
The following increases or decreases in the principal amount of this Global
Security have been made:
AMOUNT OF INCREASE IN AMOUNT OF DECREASE IN PRINCIPAL AMOUNT OF
PRINCIPAL PRINCIPAL THIS GLOBAL SECURITY
AMOUNT OF THIS AMOUNT OF THIS FOLLOWING SUCH SIGNATURE OF AUTHORIZED
DATE MADE GLOBAL SECURITY GLOBAL SECURITY DECREASE OR INCREASE SIGNATORY OF TRUSTEE
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
________________ ________________________ ________________________ ________________________ ________________________
-13-
