EXHIBIT 4(j)
-----------------------------------------------------
PULTE CORPORATION
--------------------------------
INDENTURE SUPPLEMENT
DATED AS OF FEBRUARY 21, 2001
TO
INDENTURE
DATED AS OF OCTOBER 24, 1995
--------------------------------
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
-----------------------------------------------------
SENIOR DEBT SECURITIES
INDENTURE SUPPLEMENT dated as of February 21, 2001, among PULTE
CORPORATION, a Michigan corporation ("Company"), located at 00 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, BANK ONE TRUST COMPANY,
N.A., as Trustee ("Trustee"), PULTE HOME CORPORATION ("Pulte Home"), and the
direct and indirect wholly-owned subsidiaries of Pulte Home set forth on the
signature pages hereto (Pulte Home and such subsidiaries and, as applicable, any
successor who replaces such Guarantor pursuant to the applicable provisions of
this Indenture Supplement and the Indenture (as defined below) and, thereafter,
such successor, all together the "Guarantors").
RECITALS
The Company has 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, the Indenture Supplement dated as of
April 3, 2000 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 8.125% Senior Notes due 2011 (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.
Section 901 of the Indenture also permits the Company and the Trustee
to execute supplements to the Indenture for the purpose of adding guarantors of
the Guaranteed Obligations and to add to the covenants of the Company or any
Guarantor for the benefit of the Holders of all or any series of Securities or
to surrender any right or power conferred upon the Company or such Guarantor
without the consent of any Holders.
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, and, as to Articles III,
IV, and VI, all Securities or of series thereof, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. Defined Terms. Except as otherwise expressly provided in
this Indenture Supplement or in the form of Note attached as Exhibit A hereto or
otherwise clearly required by the context hereof or thereof, all capitalized
terms used and not defined in this Indenture Supplement that are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture. For all purposes of this Indenture Supplement:
"Certificated Note" has the meaning set forth in Section 2.04 hereof.
"Closing Date" means February 26, 2001.
"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.
"Global Notes" 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.
"Notes" means any of the Securities of the series designated in the
third paragraph of the recitals hereof and Section 2.01 hereof that are
authenticated and delivered under the Indenture. For all purposes of the
Indenture, the term "Notes" shall include the Notes initially issued on the
Closing Date and any other Notes issued after the Closing Date under the
Indenture. For purposes of the Indenture, all Notes shall vote together and
otherwise constitute a single series of Securities under the Indenture.
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
2
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 8.125% Series Notes due
2011, limited in aggregate principal amount to $200,000,000 (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 March 1, 2011.
The principal of the Notes shall bear interest at the rate of 8.125%
per annum from February 26, 2001 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, payable semi-annually in
arrears on March 1 and September 1 (each, an "Interest Payment Date") in each
year, commencing September 1, 2001, to the Persons in whose names the Notes (or
one or more Predecessor Securities) are registered at the close of business on
the February 15 or August 15 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 8.125% per annum.
Interest on the Notes shall be calculated on the basis of a 360-day
year of twelve 30-day months.
No additional amounts will be payable on any Notes held by a Person who
is a non-United States citizen in respect of any tax, assessment or governmental
charge withheld or deducted.
The Borough of Manhattan, in The City of New York is hereby designated
as a Place of Payment for the Notes; and the place where the principal of and
interest on the Notes shall be payable, where Notes may be surrendered for
registration of transfer and exchange, and where notices and, if other than in
the manner provided in Section 105 of the Original Indenture, demands to or upon
the Company in respect of the Notes may be served, shall be the office or agency
maintained by the Company for that purpose in the Borough of Manhattan, in The
City of New York, which initially shall be the office of the Trustee located at
00 Xxxx Xxxxxx, 0xx Xxxxx - Window 2, New York, New York 10005, Attention:
Corporate Trust Administration.
3
The Notes shall, without limitation, be subject to, and have the
benefit of, Sections 1006 and 1007 and Article 8 of the Indenture and 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 V 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 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.
ARTICLE III
ADDITION OF GUARANTORS
SECTION 3.01. The following companies are hereby added as Guarantors of
the Guaranteed Obligations under the Indenture:
Pulte Homes of Michigan I X.X.
Xxxxx Homes of New York, Inc.
Pulte Communities NJ, Limited Partnership
Pulte Homes of NJ, Limited Partnership
Pulte Homes of PA, Limited Partnership
Pulte Michigan Holdings Corporation
Pulte Michigan Services, LLC
4
ARTICLE IV
APPLICATION OF AMENDMENTS TO INDENTURE
SECTION 4.01. Amendment to Definition of "Bank Credit Facility" in the
Original Indenture. The definition of "Bank Credit Facility" in Section 101 of
the Original Indenture is hereby amended and restated as follows:
"Bank Credit Facility" means the Credit Agreement, dated as of August
31, 2000, by and among Pulte Corporation, material subsidiaries of
Pulte Corporation as guarantors, Bank of America, N.A.
(successor-in-interest to Nationsbank, N.A.), as administrative agent,
Bank One, N.A. (formerly known as The First National Bank of Chicago),
as syndication agent, Comerica Bank, as co-agent, Bank of America
Securities LLC, as arranger, and the other lenders named therein, and
any related documents (including, without limitation, any guarantees or
security documents), as such agreements (and such related documents)
may be amended, restated, supplemented, renewed, replaced or otherwise
modified from time to time, including any agreement extending the
maturity of or refinancing or refunding all or any portion of the
Indebtedness or increasing the amount to be borrowed under such
agreements or any successor agreement, whether or not by or among the
same parties.
SECTION 4.02. Amendment to Definition of "Permitted Holder" in the
Original Indenture. The definition of "Permitted Holder" in Section 101 of the
Original Indenture is hereby amended and restated as follows:
"Permitted Holder" means (i) Xxxxxxx X. Xxxxx, (ii) any of his
respective Affiliates, parents, spouses, descendants, and spouses of
descendants, (iii) any trusts or other entities controlled by Xx. Xxxxx
and (iv) in the event of the death or incapacity of Xx. Xxxxx or any of
the persons referred to in clause (ii) above, their respective estates,
heirs, executors, administrators or other personal representatives.
SECTION 4.03. Form of Legend for Global Securities. A new Section 204
is hereby inserted in Article Two of the Original Indenture as follows:
Section 204. Form of Legend for Global Securities. Any Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form:
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 a 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
5
the Depositary or another nominee of the Depositary) may be registered
except in such limited circumstances.
SECTION 4.04. Amendment to Section 301 of the Original Indenture.
Section 301(20) is hereby redesignated as Section 301(21), and a new Section
301(20) is hereby inserted in Article Three of the Original Indenture as
follows:
(20) whether any Securities of the series are to be issuable in whole
or in part in the form of one or more Global Securities and, if so, (a)
the Depositary with respect to such Global Security or Securities and
(b) the circumstances under which any such Global Security may be
exchanged for Securities registered in the name of, and any transfer of
such Global Security may be registered to, a Person other than such
Depositary or its nominee; and
SECTION 4.05. Amendment to Section 305 of the Original Indenture.
Section 305 of the Original Indenture is hereby amended and restated but only
insofar as it relates to the Notes and any other series of Securities originally
issued after the date hereof (unless otherwise expressly provided pursuant to
Section 301 of the Original Indenture with respect to the Securities of any such
other series), to append the following paragraph at the end thereof:
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 306, 906 or 1107 for
Securities registered in the name of, and a transfer of a Global
Security of any series may be registered to, any Person other than the
Depositary for such Security or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time such Depositary
ceases to be a clearing agency registered under the Exchange Act, and,
in either such case, the Company does not appoint a successor
Depositary within 90 days thereafter, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall
be so exchangeable and the transfer thereof so registrable or (iii)
there shall have occurred and be continuing an Event of Default or an
event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default with respect to the Securities of such
series. Upon the occurrence in respect of any Global Security of any
series of any or more of the conditions specified in clause (i), (ii)
or (iii) of the preceding sentence or such other conditions as may be
specified as contemplated by Section 301 for such series, such Global
Security may be exchanged for Securities registered in the name of, and
the transfer of such Global Security may be registered to, such Persons
(including Persons other than the Depositary with respect to such
series and its nominees) as such Depositary, in the case of an
exchange, and the Company, in the case of a transfer, shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of any Global
6
Security shall also be a Global Security and bear the legend specified
in Section 204.
SECTION 4.06. Amendment to Section 308 of the Original Indenture. The
following paragraph is inserted before the first paragraph of Section 308 of the
Original Indenture:
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary (or its nominee) shall have any rights under
this Indenture with respect to such Global Security or any Security
represented thereby, and such Depositary may be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security or any Security represented thereby for all
purposes whatsoever. Notwithstanding the foregoing, with respect to any
Global Security, 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 a
Depositary or impair, as between a Depositary and such holders of
beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depositary (or its nominee) as Holder
of any Security.
ARTICLE V
ORIGINAL ISSUE OF NOTES
SECTION 5.01. Notes. Notes in the aggregate principal amount of
$200,000,000 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.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. 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 6.02. 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 6.03. 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.
7
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed as of the day and year first above written.
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: ________________________
Name:
Title: Agent
PULTE CORPORATION
By: ________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Attest: ___________
Abacoa Homes, Inc.,
a Florida corporation:
American Title of the Palm Beaches Corp.,
a Michigan corporation:
American Title of the Palm Beaches, Ltd.,
a Florida corporation:
Xxxx'x Xxxxx, L.L.C.,
a Maryland limited liability company:
Devtex Land, L.P.,
a Texas limited partnership:
DiVosta and Company, Inc.,
a Florida corporation:
DiVosta Building Corporation,
a Florida corporation:
DiVosta Homes, Inc.,
a Florida corporation:
Florida Building Products, Inc.,
a Florida corporation:
Florida Club Homes, Inc.,
a Florida corporation:
Hammock Reserve Development Company,
a Florida corporation:
Xxxxxxxx Hills, LLC,
a Maryland limited liability company:
Homesite Solutions Corporation,
a Michigan corporation:
Island Walk Development Company,
a Florida corporation:
One Willowbrook L.L.C.,
a Maryland limited liability company:
PB Venture L.L.C.,
a Michigan limited liability company:
PBW Corporation,
a Michigan corporation:
PC/BRE Development L.L.C.,
a Delaware limited liability company:
PC/BRE Springfield L.L.C.,
a Delaware limited liability company:
PC/BRE Venture L.L.C.,
a Delaware limited liability company:
PC/BRE Xxxxxxx Xxxx L.L.C.,
a Delaware limited liability company:
PC/XXX Xxxxxxxx L.L.C.,
a Delaware limited liability company:
PC/Palm Beach, Inc.,
a Michigan corporation:
PN I, Inc.,
a Nevada corporation:
XX XX, Inc.,
a Nevada corporation:
Pulte Communities NJ,
Limited Partnership,
a Michigan limited partnership:
Pulte Development Corporation,
a Michigan corporation:
Pulte Home Corporation,
a Michigan corporation:
Pulte Home Corporation of New England,
a Michigan corporation:
Pulte Home Corporation of the Delaware
Valley,
a Michigan corporation:
Pulte Homes of Greater Kansas City, Inc.,
a Michigan corporation:
Pulte Homes of Michigan Corporation,
a Michigan corporation:
Pulte Homes of Michigan I L.P.,
a Michigan limited partnership:
Pulte Homes Minnesota Corporation,
a Minnesota corporation:
Pulte Homes of NJ,
Limited Partnership,
a Michigan limited partnership:
Pulte Homes of New York, Inc.,
a Michigan corporation:
Pulte Homes of Ohio Corporation,
an Ohio corporation:
Pulte Homes of PA,
Limited Partnership,
a Michigan limited partnership:
Pulte Homes of South Carolina, Inc.,
a Michigan corporation:
Pulte Homes of Texas, L.P.,
a Texas limited partnership:
Pulte Homes Tennessee
Limited Partnership,
a Nevada limited partnership:
Pulte Land Company, LLC,
a Michigan limited liability company:
Pulte Land Development Corporation,
a Michigan corporation:
Pulte Lifestyle Communities, Inc.,
a Michigan corporation:
Pulte Michigan Holdings Corporation,
a Michigan corporation:
Pulte Michigan Services, LLC.,
a Michigan limited liability company:
Pulte Payroll Corporation,
a Michigan corporation:
Pulte-IN Corp.,
a Michigan corporation:
Radnor Homes, Inc.,
a Michigan corporation:
Riverwalk Commerce Acquisition Corp.,
a Michigan corporation:
Riverwalk of the Palm Beaches Development
Company, Inc.,
a Florida corporation:
RN Acquisition 2 Corp.,
a Nevada corporation:
Xxxx/Xxxxxxxxxxx Homes, Inc.,
a Michigan corporation:
Village Walk Development Company, Inc.,
a Florida corporation:
Wilben, LLLP,
a Maryland limited liability partnership:
Wil Corporation,
a Michigan corporation:
By: ____________________________________
Authorized Signatory for each of the
Guarantors
Attest:
By: ____________________________________
Authorized Signatory for each of the
Guarantors
