s-4

Approximate date of commencement of proposed sale to the public: As soon as practicable after the Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: o

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: o

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: o

THE REGISTRANT AND THE ADDITIONAL REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.


*	Information regarding additional registrants (“Additional Registrants”) is contained in the Table of Additional Registrants on the following page.

The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.


•	We are offering to exchange new registered 7 7/8% Senior Notes due 2011 for all of our outstanding unregistered 7 7/8% Senior Notes due 2011.

•	The exchange offer expires at 5:00 p.m., New York City time, on , 2001, unless we extend it.

•	The exchange will not be a taxable event for U.S. federal income tax purposes.

•	The terms of the new notes are substantially identical to those of the original notes, except for the transfer restrictions and registration rights relating to the original notes and except that the new notes will not provide for the payment of additional interest under circumstances relating to the timing of the exchange offer and will be issuable in different authorized denominations than the original notes.

•	The new notes will not trade on any national securities exchange and, therefore, we do not anticipate that an active public market in the new notes will develop.

These securities have not been approved or disapproved by the Securities and Exchange Commission or any state securities commission nor has the commission passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

This summary highlights selected information and may not contain all the information that is important to you. We encourage you to read the entire prospectus, the documents incorporated by reference in this prospectus and the other documents to which this prospectus refers. As used in this prospectus, all references to “Pulte,” “we” and “us” and all similar references are to Pulte Homes, Inc. and its consolidated subsidiaries, but excluding Del Webb Corporation and its subsidiaries, unless otherwise stated or the context otherwise requires.

The following is a brief summary of the terms of this offering. For a more complete description of terms of the new notes, see “Description of the New Notes” in the prospectus.


		connection with any resale of the new notes. A broker-dealer may use this prospectus in connection with any resale for a period of 180 days after the end of the exchange offer.

Expiration date		The exchange offer will expire at 5:00 p.m., New York City time, on , 2001, unless we extend it.

Withdrawal rights		You may withdraw your tender of original notes at any time before the exchange offer expires.

Federal income tax consequences		The exchange of original notes for new notes will not result in any income, gain or loss to you for U.S. federal income tax purposes.

Exchange agent		Bank One Trust Company, National Association is serving as the exchange agent in connection with the exchange offer.

Consequences of failure to exchange		If you are eligible to participate in the exchange offer and you do not tender your original notes, you will not have further exchange or registration rights and you will continue to hold notes subject to restrictions on transfer.


	subsidiaries in the United States. The guarantees will rank equally with all other unsecured and unsubordinated indebtedness of such subsidiaries.

We are the nation’s largest homebuilder based on units sold worldwide compared to the fiscal 2000 results of our competitors. Through Pulte Home Corporation and our other homebuilding subsidiaries in the United States, we acquire land, develop communities and build and sell a wide variety of homes, including detached units, townhouses, condominium apartments and duplexes, all primarily sold for use as principal residences. Our homes are targeted to first-time, move-up, semi-custom and active adult home buyers (a growing demographic group in their pre-retirement and retirement years). As of December 31, 2000, our domestic operations offered homes for sale in 396 communities in 41 markets and 25 states at prices ranging from $70,000 to over $1,200,000 (sales prices of homes offered for sale in the majority of our communities fall within the range of $100,000 to $300,000), with an average price of $206,000. Our international homebuilding subsidiaries engage in residential land development and homebuilding in Mexico, Puerto Rico and Argentina. Through Pulte Mortgage Corporation, we also provide mortgage financing services, primarily to buyers of our homes.

Our homebuilding strategy in the United States is focused on the continued development of the Pulte consumer and value-based brand. Our goal is to create a Homeowner for Life^TM by providing a wide array of well-located, quality-built residential housing communities for homebuyers as they transition from first-time, move-up, semi-custom and ultimately to active adult buyers. Our extensive pre-construction market research and analysis enables us to understand what our homebuyers desire. We then specifically develop our communities and products to that well-defined homebuyer profile. Our commitment to research and development is focused on the continuous improvement of construction and land development technique, which allows us to provide high levels of quality and value in our homes and communities. Our Pulte Preferred Partnership^TM P³ program was initiated with a goal toward developing long-term relationships with premier contractors and suppliers to maximize execution of our development and building plans. In addition, we believe that our well-capitalized financial structure combined with our high level of production volume allow us to negotiate favorable material and supply purchasing agreements on a national and/or regional basis to minimize our costs of production.

On July 31, 2001, we consummated the acquisition of Del Webb Corporation. Del Webb is the nation’s largest developer of active adult communities, having built and sold more than 70,000 homes at 13 Sun City communities over the past 40 years. Del Webb’s active adult communities (primarily the Sun City communities) are generally large-scale, master planned communities with extensive amenities for people age 55 and over. Del Webb designs, develops and markets these communities, usually controlling all phases of the master plan development process from land selection through construction and sale of homes. Del Webb also develops family and country club communities open to people of all ages in the metropolitan or market areas in which active adult communities are developed. As of June 30, 2000, Del Webb offered homes in 15 communities (including 8 Sun City communities) at prices ranging from $75,000 to $518,000 (sales prices of homes offered for sale in the majority of the Del Webb communities fall within the range of $104,000 to $400,000), with an average price of $237,000.

On a pro-forma basis, giving effect to the Del Webb transaction, for the 12 months ended December 31, 2000, we would have had revenues of $6.1 billion and EBITDA of $630 million.


	•	strengthen our position in the nation’s fastest growing homebuilding markets;

	•	enhance our overall land position;

	•	increase our presence in the retirement/active adult market segments;

	•	enable us to capture greater financial services revenues and other ancillary revenues;


	•	increase our size in terms of revenue and earnings;

	•	enhance our competitive position and provide economies of scale;

	•	provide us with operational savings and purchasing leverage; and

	•	enhance our internet and broadband activities.

Our executive offices are located at 33 Bloomfield Hills Parkway, Suite 200, Bloomfield Hills, Michigan 48304, and our telephone number is (248) 647-2750.

The following table shows our ratios of earnings to fixed charges for the periods indicated. This information should be read in conjunction with the consolidated financial statements and the accompanying notes incorporated by reference in this prospectus.


(a)	The ratios of earnings to fixed charges set forth above are computed on a total enterprise basis, except for our discontinued thrift operations, which are excluded. Fixed charges include interest incurred, a portion of rent expense, representing the estimated interest factor and amortization of debt expense.

This prospectus (including the information incorporated by reference herein) contains forward-looking statements with respect to our financial condition, results of operations, plans, objectives, future performance and business, including, without limitation, statements preceded by, followed by or that include the words “believes,” “expects,” “anticipates,” “estimates” or similar expressions. These forward-looking statements involve risks and uncertainties. Actual results may differ materially from those contemplated by the forward-looking statements due to, among others, matters described in the documents incorporated by reference herein and the following factors:


	•	our exposure to certain market risks, changes in economic conditions, tax and interest rates, increases in raw material and labor costs, shortages of skilled labor, shifts in demand for new homes, changes in costs associated with home ownership, such as property taxes and energy costs, weather conditions and general competitive factors;

	•	actions taken or omitted to be taken by third parties, including customers, suppliers, competitors, and shareholders, as well as legislative, regulatory, judicial and other governmental authorities;

	•	changes or developments in the laws and regulations applicable to the construction and homebuilding industry;

	•	our ability to resolve all outstanding matters related to the First Heights litigation, including our appeal of a district court ruling in favor of the FDIC; and

	•	our ability integrate the recently acquired business operations of Del Webb Corporation, including Del Webb Corporation’s activities, management and corporate culture, and our ability to develop and manage active adult communities which differ from Pulte’s historical homebuilding business.

This exchange offer is intended to satisfy our obligations under the registration rights agreement entered into in connection with the issuance of the original notes. We will not receive any cash proceeds from the issuance of the new notes in the exchange offer.

We used the net proceeds of the offering of the original notes to repay certain indebtedness of Del Webb and its subsidiaries and to pay certain fees and costs associated with the acquisition of Del Webb.

We sold the original 7 7/8% Senior Notes on August 6, 2001 in a transaction exempt from the registration requirements of the Securities Act. Therefore, those notes are subject to significant restrictions on resale. In connection with this issuance, we entered into a registration rights agreement with the initial purchasers under which we agreed to file an exchange offer registration statement under the Securities Act and, upon effectiveness of the registration statement, offer to you the opportunity to exchange your original 7 7/8% Senior Notes for a like principal amount of registered 7 7/8% Senior Notes.

Under existing interpretations of the Securities Act by the staff of the SEC contained in several no-action letters to third parties, and subject to the immediately following sentence, we believe that the new notes would generally be freely transferable by holders after the exchange offer without further registration under the Securities Act (subject to certain representations required to be made by each holder of senior notes, as set forth below). However, any purchaser of original notes who is one of our “affiliates,” who intends to participate in the exchange offer for the purpose of distributing the new notes or who is a broker-dealer who purchased senior notes from Pulte to resell pursuant to Rule 144A or any other available exemption under the Securities Act, (1) will not be able to rely on the interpretations of the staff of the SEC, (2) will not be able to tender its original notes in the exchange offer and (3) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the senior notes unless such sale or transfer is made pursuant to an exemption from such requirements.

If you wish to exchange your original notes for new notes in the exchange offer, you will be required to make certain representations. These representations include that:


	•	any new notes to be received by you will be acquired in the ordinary course of your business;

	•	you have no arrangement or understanding with any person to participate in the distribution of the original notes or new notes;

	•	you are not our “affiliate” (as defined in Rule 405 under the Securities Act);

	•	if you are not a broker-dealer, you are not engaged in, and do not intend to engage in, the distribution of the new notes;

	•	if you are a broker-dealer, you will receive new notes for your own account in exchange for original notes that acquired as a result of market-making activities or other trading activities and that you will deliver a prospectus in connection with any resale of such new notes; and

	•	you are not acting on behalf of any person who could not truthfully make the foregoing representations.

We are offering to exchange $500 million in aggregate principal amount of our 7 7/8% Senior Notes due 2011 that have been registered under the Securities Act for a like principal amount of our outstanding unregistered 7 7/8% Senior Notes due 2011.

Upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, we will accept all original notes validly tendered and not withdrawn before 5:00 p.m., New York City time, on the expiration date of the exchange offer. We will issue $1,000 principal amount of new notes in exchange for each $1,000 principal amount of outstanding original notes we accept in the exchange offer. You may tender some or all of your original notes under the exchange offer. However, the original notes are issuable in authorized denominations of $100,000 and integral multiples of $1,000 in excess thereof. Accordingly, original notes may be tendered only in denominations of $100,000 and integral multiples of $1,000 in excess thereof and, if you do not tender all of your original notes, you must retain at least $100,000 of original 7 7/8% Senior Notes. The exchange offer is not conditioned upon any minimum amount of original notes being tendered.

The form and terms of the new notes will be the same as the form and terms of the original notes, except that:


	•	the new notes will be registered under the Securities Act and, thus, will not be subject to the restrictions on transfer or bear legends restricting their transfer;

	•	all of the new notes will be represented by global notes in book-entry form unless exchanged for notes in definitive certificated form under the limited circumstances described under “DESCRIPTION OF THE NEW NOTES — Global Notes and Book-Entry System”;

	•	the new notes will not provide for the payment of additional interest under circumstances relating to the timing of the exchange offer; and

	•	the new notes will be issuable in denominations of $1,000 and integral multiples thereof.

The new notes will evidence the same debt as the original notes and will be issued under, and be entitled to the benefits of, the indenture, as supplemented, governing the original notes. The new notes will accrue interest from the most recent date to which interest has been paid or, if no interest has been paid, from date of issuance of the original notes. Accordingly, registered holders of new notes on the record date for the first interest payment date following the completion of the exchange offer will receive interest accrued from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance of the original notes. However, if that record date occurs prior to completion of the exchange offer, then the interest payable on the first interest payment date following the completion of the exchange offer will be paid to the registered holders of the original notes on that record date.

In connection with the exchange offer, you do not have any appraisal or dissenters’ rights under the Business Corporation Act of the State of Michigan or the indenture, as supplemented. We intend to conduct the exchange offer in accordance with the registration rights agreement and the applicable requirements of the Securities Exchange Act of 1934 and the rules and regulations of the SEC.

We will be deemed to have accepted validly tendered original notes when, as and if we have given oral or written notice of our acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders for the purpose of receiving the new notes from us. If we do not accept any tendered notes because of an invalid tender or for any other reason, we will return certificates for any unaccepted original notes without expense to the tendering holder as promptly as practicable after the expiration date.

The exchange offer will expire at 5:00 p.m., New York City time, on , 2001, unless we, in our sole discretion, extend the exchange offer. If we determine to extend the exchange offer, we will notify the exchange agent of any extension by oral or written notice and give each registered holder notice of the extension by means of a press release or other public announcement before 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. We reserve the right, in our sole discretion, to delay accepting any original notes, to extend the exchange offer or to amend or terminate the exchange offer if any of the conditions described below under “Conditions” have not been satisfied or waived by giving oral or written notice to the exchange agent of the delay, extension,

Any tender of original notes that is not withdrawn prior to the expiration date will constitute a binding agreement between the tendering holder and us upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal. A holder who wishes to tender original notes in the exchange offer must do either of the following:


	•	properly complete, sign and date the letter of transmittal, including all other documents required by the letter of transmittal; have the signature on the letter of transmittal guaranteed if the letter of transmittal so requires; and mail or deliver that letter of transmittal and other required documents to the exchange agent at the address listed below under “Exchange Agent” on or before the expiration date; or

	•	if the original notes are tendered under the book-entry transfer procedures described below, transmit to the exchange agent on or before the expiration date an agent’s message.


	•	the exchange agent must receive certificates representing your original notes, along with the letter of transmittal, on or before the expiration date; or

	•	the exchange agent must receive a timely confirmation of book-entry transfer of the original notes into the exchange agent’s account at DTC under the procedure for book-entry transfers described below, along with the letter of transmittal or a properly transmitted agent’s message, on or before the expiration date; or

	•	the holder must comply with the guaranteed delivery procedures described below.

The term “agent’s message” means a message, transmitted by the book-entry transfer facility to and received by the exchange agent and forming a part of the book-entry confirmation, which states that the book-entry transfer facility has received an express acknowledgment from the tendering participant stating that the participant has received and agrees to be bound by the letter of transmittal and that we may enforce the letter of transmittal against the participant. The method of delivery of original notes, the letter of transmittal and all other required documents to the exchange agent is at your election and risk. Rather than mail these items, we recommend that you use an overnight or hand delivery service. In all cases, you should allow sufficient time to assure timely delivery to the exchange agent before the expiration date. Do not send letters of transmittal or original notes to us.

Generally, an eligible institution must guarantee signatures on a letter of transmittal or a notice of withdrawal unless the original notes are tendered:


	•	by a registered holder of the original notes who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal; or

	•	for the account of an eligible institution.

If signatures on a letter of transmittal or a notice of withdrawal are required to be guaranteed, the guarantee must be by a firm which is:


	•	a member of a registered national securities exchange;

	•	a member of the National Association of Securities Dealers, Inc.;

	•	a commercial bank or trust company having an office or correspondent in the United States; or

	•	another “eligible institution” within the meaning of Rule 17Ad-15 under the Securities Exchange Act.

If the letter of transmittal is signed by a person other than the registered holder of any outstanding original notes, the original notes must be endorsed or accompanied by appropriate powers of attorney. The power of attorney must be signed by the registered holder exactly as the registered holder(s) name(s) appear(s) on the original notes and an eligible institution must guarantee the signature on the power of attorney.

If the letter of transmittal or any original notes or powers of attorney are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, these persons should so indicate when signing. Unless waived by us, they should also submit evidence satisfactory to us of their authority to so act. If you wish to tender original notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should promptly instruct the registered holder to tender on your behalf.

If you wish to tender on your behalf, you must, before completing the procedures for tendering original notes, either register ownership of the original notes in your name or obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time.

We will determine in our sole discretion all questions as to the validity, form, eligibility, including time of receipt, and acceptance of original notes tendered for exchange. Our determination will be final and binding on all parties. We reserve the absolute right to reject any and all tenders of original notes not properly tendered or original notes our acceptance of which might, in the judgment of our counsel, be unlawful. We also reserve the absolute right to waive any defects, irregularities or conditions of tender as to any particular original notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of original notes must be cured within the time period we determine. Neither we, the exchange agent nor any other person will incur any liability for failure to give you notification of defects or irregularities with respect to tenders of your original notes.


	•	the new notes acquired in the exchange offer are being acquired in the ordinary course of business of the person receiving the new notes;

	•	neither you nor any other person receiving your new notes has any arrangement or understanding with any person to participate in the distribution of the new notes; and

	•	neither you nor any other person receiving your new notes is our “affiliate,” as defined under Rule 405 of the Securities Act.

If you or the person receiving your new note is our “affiliate,” as defined under Rule 405 of the Securities Act, or is participating in the exchange offer for the purpose of distributing the new notes, you or that other person (1) cannot rely on the applicable interpretations of the staff of the SEC and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in any resale transaction.

If you are a broker-dealer and you will receive new notes for your own account in exchange for original notes, where such original notes were acquired as a result of market-making activities or other trading activities, you must acknowledge that you will deliver a prospectus in connection with any resale of the new notes.

Upon satisfaction of all conditions to the exchange offer, we will accept, promptly after the expiration date, all original notes properly tendered and will issue the new notes promptly after acceptance of the original notes.

For purposes of the exchange offer, we shall be deemed to have accepted properly tendered original notes for exchange when, as and if we have given oral or written notice of that acceptance to the exchange

In all cases, we will issue new notes for original notes that we have accepted for exchange under the exchange offer only after the exchange agent timely receives (1) certificates for your original notes or a timely confirmation of book-entry transfer of your original notes into the exchange agent’s account at DTC and (2) a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent’s message. If we do not accept any tendered original notes for any reason set forth in the terms of the exchange offer or if you submit original notes for a greater principal amount than you desire to exchange, we will return the unaccepted or non-exchanged original notes without expense to you. In the case of original notes tendered by book-entry transfer into the exchange agent’s account at DTC under the book-entry procedures described below, we will credit the non-exchanged original notes to your account maintained with DTC.

We understand that the exchange agent will make a request within two business days after the date of this prospectus to establish accounts for the original notes at DTC for the purpose of facilitating the exchange offer, and any financial institution that is a participant in DTC’s system may make book-entry delivery of original notes by causing DTC to transfer the original notes into the exchange agent’s account at DTC in accordance with DTC’s procedures for transfer. Although delivery of original notes may be effected through book-entry transfer at DTC, the exchange agent must receive a properly completed and duly executed letter of transmittal with any required signature guarantees, or an agent’s message instead of a letter of transmittal, and all other required documents at its address listed below under “Exchange Agent” on or before the expiration date, or if you comply with the guaranteed delivery procedures described below, within the time period provided under those procedures.

If you wish to tender your original notes and your original notes are not immediately available, or you cannot deliver your original notes, the letter of transmittal or any other required documents or comply with DTC’s procedures for transfer before the expiration date, then you may participate in the exchange offer if:


	(1) the tender is made through an eligible institution;

	(2) before the expiration date, the exchange agent receives from the eligible institution a properly completed and duly executed notice of guaranteed delivery, substantially in the form provided by us, by facsimile transmission, mail or hand delivery, containing (a) the name and address of the holder and the principal amount of original notes tendered, (b) a statement that the tender is being made thereby and (c) a guarantee that within three New York Stock Exchange trading days after the expiration date, the certificates representing the original notes in proper form for transfer or a book-entry confirmation and any other documents required by the letter of transmittal will be deposited by the eligible institution with the exchange agent;


	(3) the exchange agent receives the properly completed and executed letter of transmittal as well as certificates representing all tendered original notes in proper form for transfer, or a book-entry confirmation, and all other documents required by the letter of transmittal within three New York Stock Exchange trading days after the expiration date.

You may withdraw your tender of original notes at any time before the expiration date of the exchange offer. For a withdrawal to be effective, the exchange agent must receive a written notice of withdrawal at its address listed below under “Exchange Agent.” The notice of withdrawal must:


	•	specify the name of the person who tendered the original notes to be withdrawn;

	•	identify the original notes to be withdrawn, including the principal amount, or, in the case of original notes tendered by book-entry transfer, the name and number of the DTC account to be credited, and otherwise comply with the procedures of DTC; and

	•	if certificates for original notes have been transmitted, specify the name in which those original notes are registered if different from that of the withdrawing holder.

If you have delivered or otherwise identified to the exchange agent the certificates for original notes, then, before the release of such certificates, you must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an eligible institution, unless the holder is an eligible institution.

We will determine in our sole discretion all questions as to the validity, form and eligibility, including time of receipt, of notices of withdrawal. Our determination will be final and binding on all parties. Any original notes so withdrawn will be deemed not to have been validly tendered for purposes of the exchange offer. We will return any original notes that have been tendered but that are not exchanged for any reason to the holder, without cost, as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer. In the case of original notes tendered by book-entry transfer into the exchange agent’s account at DTC, the original notes will be credited to an account maintained with DTC for the original notes. You may retender properly withdrawn original notes by following one of the procedures described under “Procedures for Tendering Original Notes” at any time on or before the expiration date.

Notwithstanding any other term of the exchange offer, we will not be required to accept for exchange, or exchange new notes for, any original notes if:


	(1) any action or proceeding is instituted or threatened in any court or by or before any governmental agency with respect to the exchange offer which, in our judgment, would reasonably be expected to impair our ability to proceed with the exchange offer; or

	(2) the exchange offer, or the making of any exchange by a holder of original notes, would violate any applicable law or applicable interpretation by the staff of the SEC.

The conditions listed above are for our sole benefit and we may assert them regardless of the circumstances giving rise to any condition. We may waive these conditions in our discretion in whole or in part at any time and from time to time. If we fail at any time to exercise any of the above rights, the failure will not be deemed a waiver of those rights, and those rights will be deemed ongoing rights which may be asserted at any time and from time to time.

Bank One Trust Company, National Association is the exchange agent for the exchange offer. You should direct any questions and requests for assistance and requests for additional copies of this prospectus, the letter of transmittal or the notice of guaranteed delivery to the exchange agent addressed as follows:

Delivery of the letter of transmittal to an address other than as listed above or transmission via facsimile other than as listed above will not constitute a valid delivery of the letter of transmittal.

We will pay the expenses of the exchange offer. We will not make any payments to brokers, dealers or others soliciting acceptances of the exchange offer. We are making the principal solicitation by mail; however, our officers and employees may make additional solicitations by facsimile transmission, e-mail, telephone or in person. You will not be charged a service fee for the exchange of your notes, but we may require you to pay any transfer or similar government taxes in certain circumstances.

You will not be obligated to pay any transfer taxes, unless you instruct us to register new notes in the name of, or request that original notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder.

If you are eligible to participate in the exchange offer but do not tender your original notes, you will not have any further registration rights. Your original notes will continue to be subject to restrictions on transfer. Accordingly, you may resell the original notes that are not exchanged only:


	•	to us;

	•	so long as the original notes are eligible for resale under Rule 144A under the Securities Act, to a person whom you reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A;

	•	in accordance with Rule 144 under the Securities Act or another exemption from the registration requirements of the Securities Act;

	•	to an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that is acquiring the notes for its own account or for the account of an institutional accredited investor for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act; or

in each case in accordance with all other applicable securities laws. We do not intend to register the original notes under the Securities Act.

You can find the definitions of some terms used in this description under the caption “Certain Definitions.” Unless otherwise stated or the context otherwise requires, references in this section to:


	•	the term “senior notes” refers to the original notes and new notes, collectively; and

	•	the “indenture” are references to 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 as of July 31, 2001, and the Indenture Supplement dated August 6, 2001, between Pulte, as issuer, the subsidiary guarantors named therein, (the “Guarantors”) and Bank One Trust Company, National Association (successor-in-interest to The First National Bank of Chicago), as Trustee.

We will issue the new notes under the indenture. We have summarized selected provisions of the Indenture below. The summary is not complete. Copies of the Indenture are available to prospective purchasers of the new notes upon request made to us. You should read the Indenture for provisions that may be important to you. Capitalized terms have the meanings assigned to them in the Indenture.

The Indenture does not limit the amount of debt securities that we may issue. We may issue debt securities under the Indenture from time to time in one or more series. The original notes and the new notes will constitute a single series of debt securities under the Indenture and will vote together as a single class for purposes of determining whether holders of the requisite percentage in principal amount thereof have taken actions or exercised rights they are entitled to take or exercise under the Indenture.

The new notes will be unsecured and unsubordinated obligations of Pulte Homes, Inc. and will rank equally and ratably with our other unsecured and unsubordinated indebtedness.

We conduct our operations through our subsidiaries and, therefore, we are primarily dependent on the earnings and cash flows of our subsidiaries to meet our debt service obligations. Except as described below with regard to certain Del Webb senior subordinated notes, there currently are no restrictions on the ability of our subsidiaries (including the subsidiaries that are not Guarantors) to provide funds to us to meet our debt service obligations.

The indentures relating to Del Webb’s senior subordinated notes contain “restricted payment” covenants which restrict the ability of Del Webb and its subsidiaries, certain of which will become Guarantors, to engage in dividends, distributions and other restricted payments as defined therein, which would limit their ability to transfer funds to us in order to enable us to meet our debt service obligations. As a result of the closing of the Del Webb acquisition, we were required to make a “change of control” offer to repurchase certain of the Del Webb senior subordinated notes. The holders of these Del Webb senior subordinated notes are not required to accept such offer. On August 1, 2001, we called for redemption all of the outstanding principal amount of Del Webb’s 9 3/4% senior subordinated notes due 2003, of which on July 31, 2001 there was $100 million principal amount outstanding. On August 27, 2001, we made “change of control” offers to repurchase all of the Del Webb senior subordinate notes, except for the 9 3/4% senior subordinated notes due 2003, which had already been redeemed. Del Webb has the right to redeem all other of its outstanding senior subordinated notes, at its option, at varying prepayment premiums, in the future.

Any right we have or our creditors have to participate in the assets of any of our subsidiaries upon any liquidation or reorganization of any such subsidiary will be subject to the prior claims of that subsidiary’s creditors, including trade creditors. Accordingly, the new notes will also be effectively subordinated to the creditors of our subsidiaries. The new notes will, however, have the benefit of the Guarantees from the Guarantors, which consist of all of our US homebuilding subsidiaries. The Guarantees from the Guarantors, however, are unsecured, and accordingly, will be effectively subordinated to the secured debt of the Guarantors. Our subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due pursuant to the new notes or to make any funds available therefor, whether by dividends, loans or other payments, other than as expressly provided in the Guarantees. The payment of dividends or the making of loans and advances to us by our subsidiaries are subject to contractual, statutory or regulatory restrictions, are contingent upon the earnings of those subsidiaries and are subject to various business considerations.

The new notes will mature on August 1, 2011. Interest on the new notes will accrue at a rate of 7 7/8% per annum, will be computed on the basis of a 360-day year of twelve 30-day months and will be payable semiannually in arrears on each August 1 and February 1 (each an “Interest Payment Date”), commencing on February 1, 2002. We will pay interest to the persons in whose names the new notes are registered at the close of business on July 15 or January 15, as the case may be, before any Interest Payment Date.

We expect that payments of principal, premium, if any, and interest to owners of beneficial interests in global notes will be made in accordance with the procedures of The Depository Trust Company (“DTC”) and its participants in effect from time to time. DTC will act as the Depositary for the global notes.

The new notes will not be entitled to the benefit of any sinking fund or mandatory redemption provisions.

The new notes will be issued only in fully registered form without coupons, in denominations of $1,000 and integral multiples thereof. The new notes will initially be represented by one or more global notes in book-entry form. See “Global Notes and Book-Entry System.”

The principal of, premium, if any, and interest on the new notes will be payable, and, subject to the restrictions on transfer described herein, the new notes may be surrendered for registration of transfer or exchange, at the office or agency maintained by us for that purpose in the Borough of Manhattan, The City of New York; provided that payments of interest may be made at our option by check mailed to the address of the persons entitled thereto or by transfer to an account maintained by the payee with a bank located in the United States. The office or agency initially maintained by us for the foregoing purposes shall be the office of the Trustee. No service charge will be made for any registration of transfer or exchange of the new notes, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection herewith.

If any Interest Payment Date or maturity date of any of the new notes is not a business day at any place of payment, then payment of principal, premium, if any, and interest need not be made at such place of payment on that date but may be made on the next succeeding business day at that place of payment, and no interest will accrue on the amount payable for the period from and after such Interest Payment Date or maturity date, as the case may be.

The Indenture does not limit the amount of indebtedness that we or our subsidiaries may issue. The Indenture does not contain covenants or other provisions designed to afford holders of the new notes protection in the event of a highly leveraged transaction, change in credit rating or other similar occurrence.

We do not intend to apply for the listing of the new notes on a national securities exchange or quotation system.

We expect that interests in the global notes will trade in DTC’s Same-Day Funds Settlement System and secondary market trading activity in these interests will therefore be required by DTC to settle in immediately available funds.

Payment of principal of, premium, if any, and interest on the new notes will be guaranteed, jointly and severally, on a senior basis by all of the Guarantors. Each Guarantee will be an unsecured senior obligation of the Guarantor issuing such Guarantee, ranking equal in right of payment with all existing and future Guarantor Senior Indebtedness.

The Indenture provides that, in the event any Guarantee would constitute or result in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction, the liability of the Guarantor under such Guarantee shall be reduced to the maximum amount, after giving effect to all other contingent and other liabilities of such Guarantor, permissible under the applicable fraudulent conveyance or similar law.

We may, at our option, redeem the new notes in whole at any time or in part from time to time, on at least 30 but nor more than 60 days prior notice, at a redemption price equal to the greater of:


	•	100% of their principal amount, and

	•	the present value of the Remaining Scheduled Payments (as defined below) on the new notes being redeemed on the redemption date, discounted to the date of redemption, on a semiannual basis, at the Treasury Rate (as defined below) plus 40 basis points (0.40%).

We will also accrue interest on the new notes to the date of redemption. In determining the redemption price and accrued interest, interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.

If money sufficient to pay the redemption price of and accrued interest on the new notes 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 the new notes (or such portions thereof) called for redemption and the new notes 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 the new notes 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 such new notes.

“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 not 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) Salomon Smith Barney Inc. or one of the other initial purchasers (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 New York City (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 its 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 any new note, 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 such new note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

In the event of any Change in Control Triggering Event occurring on or prior to maturity, each holder of new notes will have the right, at the holder’s option, subject to the terms and conditions of the Indenture, to require us to purchase all or any part (provided that the principal amount is $1,000 or an integral multiple thereof) of such holder’s new notes on the date that is not less than 30 nor more than 60 business days after the occurrence of 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 “Change in Control Purchase Price”).

Within 15 business days after the Change in Control Triggering Event, we are obligated to mail to the Trustee and to all holders at their addresses shown in the Securities Register (and to beneficial owners as required by applicable law) a notice regarding the Change in Control Triggering Event, which notice shall state, among other things: (i) the date by which the Change in Control Purchase Notice (as defined below) must be given by such holder, (ii) the Change in Control Purchase Price, (iii) the Change in Control Purchase Date, (iv) the name and address of the Trustee and of any other office or agency maintained for the purpose of the surrender of new notes for purchase, (v) the procedures for withdrawing a Change in Control Purchase Notice and (vi) the procedures that holders must follow to exercise these rights. We will cause a copy of such notice to be published in a daily newspaper of national circulation.

To exercise this right, the holder must deliver written notice (a “Change in Control Purchase Notice”) to the Trustee or to any other office or agency maintained for such purpose, of the exercise of such right prior to the close of business on the business day immediately prior to the Change in Control Purchase Date. The Change in Control Purchase Notice must state (i) the cusip number and the certificate number, if applicable, of the new notes to be delivered by the holder for purchase by us; (ii) the portion of the principal amount of new notes to be purchased, which portion must be $1,000 or an integral multiple thereof; and (iii) that such new notes will be submitted for purchase by us on the Change in Control Purchase Date pursuant to the applicable provisions of the new notes.

Any Change in Control Purchase Notice may be withdrawn by the holder by a written notice of withdrawal delivered to the Trustee or to any other office or agency maintained for such purpose on the business day immediately prior to the Change in Control Purchase Date. The notice of withdrawal shall state the principal amount of the new notes as to which the withdrawal notice relates and the principal amount, if any, which remains subject to the original Change in Control Purchase Notice.

Payment of the Change in Control Purchase Price for a new note for which a Change in Control Purchase Notice has been delivered and not withdrawn is conditioned upon delivery of such note (together with any endorsements) to the Trustee or to any other office or agency maintained for such purpose, at any time (whether prior to, on or after the Change in Control Purchase Date) after delivery of such

Change in Control Purchase Notice. Payment of the Change in Control Purchase Price for such note will be made promptly following the later of the Change in Control Purchase Date or the time of delivery of such note. If we have deposited with the Trustee, in accordance with the Indenture, money sufficient to pay the Change in Control Purchase Price of such note on the Change in Control Purchase Date, then, on and after the Change in Control Purchase Date, such note shall cease to be outstanding and interest on such note will cease to accrue, whether or not such note is delivered to the Trustee or to any other office or agency maintained for such purpose, and all other rights of the holder shall terminate (other than the right to receive the Change in Control Purchase Price upon delivery of the note). In accordance with the Indenture, no note may be purchased pursuant to a Change in Control Triggering Event if there has occurred and is continuing an Event of Default described below under “Events of Default” (other than a default in the payment of the Change in Control Purchase Price with respect to such senior notes).

We shall make all filings required under and comply with all federal and state securities laws regulating the purchase of senior notes at the option of holders upon a Change in Control Triggering Event, including, if applicable, Section 14(e) of the Exchange Act and Rule 14e-1 promulgated thereunder and any other applicable tender offer rules.

The Change in Control Triggering Event purchase feature of the new notes may in certain circumstances make it more difficult or discourage a change of control transaction or the removal of incumbent management. If such a Change in Control Triggering Event were to occur, there can be no assurance that we would have sufficient funds to pay the Change in Control Purchase Price for all new notes tendered by the holders thereof. A default by us on our obligation to pay the Change in Control Purchase Price could result in acceleration of the payment of our other Indebtedness at the time outstanding.

“Change in Control” means, with regard to us, the occurrence of (i) any consolidation, share exchange or merger in which we are not the continuing or surviving corporation or pursuant to which our voting stock would be converted into cash, securities or other property, other than, in any case, a merger in which the holders of our voting stock immediately prior to the merger have the same or greater proportionate ownership directly or indirectly, of the voting stock of the surviving corporation immediately after the merger as they had of our voting stock immediately before the merger, or (ii) any person, including our affiliates (other than Pulte, our Restricted Subsidiaries, our or our subsidiaries’ employee stock ownership plans or employee benefit plans, or a Permitted Holder) filing a Schedule 13D or 14D-1 (or any successor schedule, form or report under the Exchange Act) disclosing that such person has become the beneficial owner of 50% or more of our voting stock.

In view of such definition, a Change in Control will not occur, and a Change in Control Triggering Event will not arise in connection with, among other things, any Permitted Holder becoming the beneficial owner of 50% or more of our voting stock.

“Change in Control Triggering Event” means the occurrence of both a Change in Control and Rating Decline.

“Investment Grade” means a rating of BBB- or higher by S&P and Baa3 or higher by Moody’s or the equivalent of such ratings by S&P or Moody’s.

“Permitted Holder” means (i) William J. Pulte, (ii) any of his respective affiliates, parents, spouses, descendants, and spouses of descendants, (iii) any trusts or other entities controlled by Mr. Pulte and (iv) in the event of the death or incapacity of Mr. Pulte or any of the persons referred to in clause (ii) above, their respective estates, heirs, executors, administrators or other personal representatives.

“Rating Agency” means (i) S&P, (ii) Moody’s, or (iii) if S&P or Moody’s or both shall not make a rating of the senior notes publicly available, a nationally recognized securities rating agency or agencies, as the case may be, selected by Pulte, which shall be substituted for S&P or Moody’s or both, as the case may be.

“Rating Category” means (i) with respect to S&P, any of the following categories: BB, B, CCC, CC, C and D (or equivalent successor categories), (ii) with respect to Moody’s, any of the following categories: Ba, B, Caa, Ca, C and D (or equivalent successor categories), and (iii) the equivalent of any such category of S&P or Moody’s used by another Rating Agency. In determining whether the rating of the senior notes has decreased by one or more gradations, gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for Moody’s; or the equivalent gradations for another Rating Agency) shall be taken into account (e.g., with respect to S&P, a decline in rating from BB+ to BB will constitute a decrease of one gradation).

“Rating Date” means the date which is 30 days prior to the earliest of (i) a Change in Control, (ii) public notice of the occurrence of a Change in Control and (iii) public notice of the intention by Pulte to effect a Change in Control.

“Rating Decline” means the occurrence on or within 30 days after the earlier of the date of public notice of the occurrence of a Change in Control or the public announcement of the intention by Pulte to effect a Change in Control (which period shall be extended so long as the rating of the new notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies) of: (a) in the event the new notes are rated by either Moody’s or S&P on the Rating Date as Investment Grade, the rating of the new notes by both such Rating Agencies below Investment Grade, or (b) in the event the new notes are rated below Investment Grade by both such Rating Agencies on the Rating Date, the rating of the new notes by either Rating Agency is decreased by one or more gradations (including gradations within Rating Categories as well as between Rating Categories).

Restrictions on Secured Debt. The Indenture provides that we will not, and will not cause or permit a Restricted Subsidiary to, create, incur, assume or guarantee any Secured Debt unless the new notes will be secured equally and ratably with (or prior to) such Secured Debt, with certain exceptions. This restriction does not prohibit the creation, incurrence, assumption or guarantee of Secured Debt which is secured by:


	(1) Security Interests on model homes, homes held for sale, homes that are under contract for sale, contracts for the sale of homes, land (improved or unimproved), manufacturing plants, warehouses or office buildings and fixtures and equipment located thereat, or thereon;

	(2) Security Interests on property at the time of its acquisition by us or a Restricted Subsidiary, which Security Interests secure obligations assumed by us or a Restricted Subsidiary, or on the property of a corporation or other entity at the time it is merged into or consolidated with us or a Restricted Subsidiary (other than Secured Debt created in contemplation of the acquisition of such property or the consummation of such a merger or where the Security Interest attaches to or affects our property or the property of a Restricted Subsidiary prior to such transaction);

	(3) Security Interests arising from conditional sales agreements or title retention agreements with respect to property acquired by us or a Restricted Subsidiary; and

	(4) Security Interests securing Indebtedness of a Restricted Subsidiary owing to us or to another Restricted Subsidiary that is wholly-owned (directly or indirectly) by us or Security Interests securing our Indebtedness owing to a Guarantor.

Additionally, such permitted Secured Debt includes any amendment, restatement, supplement, renewal, replacement, extension or refunding in whole or in part, of Secured Debt permitted at the time of the original incurrence thereof.

In addition, we and our Restricted Subsidiaries may create, incur, assume or guarantee Secured Debt, without equally and ratably securing the new notes, if immediately thereafter the sum of (1) the aggregate principal amount of all Secured Debt outstanding (excluding Secured Debt permitted under clauses (1) through (4) above and any Secured Debt in relation to which the new notes have been equally and ratably

secured) and (2) all Attributable Debt (as defined below) in respect of Sale and Leaseback Transactions (as defined below) (excluding Attributable Debt in respect of Sale and Leaseback Transactions as to which the net proceeds of the property sold or transferred are applied to retire Indebtedness or to the purchase of property as described under “Restrictions on Sale and Leaseback Transactions”) as of the date of determination would not exceed 20% of Consolidated Net Tangible Assets (as defined below).

The provisions described above with respect to limitations on Secured Debt are not applicable to Non-Recourse Land Financing (as defined below) by virtue of the definition of Secured Debt, and will not restrict or limit our or our Restricted Subsidiaries’ ability to create, incur, assume or guarantee any unsecured Indebtedness, or of any subsidiary which is not a Restricted Subsidiary to create, incur, assume or guarantee any secured or unsecured Indebtedness.

Restrictions on Sale and Lease-back Transactions. The Indenture provides that we will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless:


	(1) notice is promptly given to the Trustee of the Sale and Leaseback Transaction;

	(2) fair value is received by us or the relevant Restricted Subsidiary for the property sold (as determined in good faith pursuant to a resolution of the Board of Directors of Pulte delivered to the Trustee); and

	(3) we or a Restricted Subsidiary, within 365 days after the completion of the Sale and Leaseback Transaction, applies an amount equal to the net proceeds therefrom either:


	•	to the redemption, repayment or retirement of debt securities of any series under the Indenture (including the cancellation by the Trustee of any debt securities of any series delivered by Pulte to the Trustee), Senior Indebtedness of Pulte or Guarantor Senior Indebtedness, or

	•	to the purchase by us or any Restricted Subsidiary of property substantially similar to the property sold or transferred.

In addition, we and our Restricted Subsidiaries may enter into a Sale and Leaseback Transaction if immediately thereafter the sum of (1) the aggregate principal amount of all Secured Debt outstanding (excluding Secured Debt permitted under clauses (1) through (4) described in “Restrictions on Secured Debt,” above or Secured Debt in relation to which the senior notes have been equally and ratably secured) and (2) all Attributable Debt in respect of Sale and Leaseback Transactions (excluding Attributable Debt in respect of Sale and Leaseback Transactions as to which the net proceeds of the property sold or transferred are applied to retire Indebtedness or to the purchase of property as described in clause (2) above) as of the date of determination would not exceed 20% of Consolidated Net Tangible Assets.

“Attributable Debt” means, in respect of a Sale and Leaseback Transaction, the present value (discounted at the weighted average effective interest cost per annum of the outstanding debt securities of all series, compounded semiannually) of the obligation of the lessee for rental payments during the remaining term of the lease included in such transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended or, if earlier, until the earliest date on which the lessee may terminate such lease upon payment of a penalty (in which case the obligation of the lessee for rental payments shall include such penalty), after excluding all amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water and utility rates and similar charges.

“Bank Credit Facility” means, collectively, the (i) Credit Agreement, dated as of August 31, 2000, as amended, by and among Pulte Homes, Inc., material subsidiaries of Pulte Homes, Inc. as guarantors, Bank of America, N.A., as administrative agent, Bank One, NA, as syndication agent, Comerica Bank, as co-agent, Banc of America Securities LLC, as arranger, and the other lenders named therein, (ii) Credit Agreement, dated July 31, 2001, by and among Pulte Homes, Inc., material subsidiaries of Pulte Homes,

Inc. as guarantors, Citicorp Real Estate, Inc., as administrative agent and lender, Bank One, NA, as syndication agent, Bank of America N.A., as documentation agent, and the other lenders named therein, and, in each case, 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.

“Consolidated Net Tangible Assets” means the total amount of assets which would be included on a combined balance sheet of the Restricted Subsidiaries (not including Pulte) together with the total amount of assets that would be included on Pulte’s balance sheet, not including its subsidiaries, under generally accepted accounting principles (less applicable reserves and other properly deductible items) after deducting therefrom:


	(1) all short-term liabilities, except for liabilities payable by their terms more than one year from the date of determination (or renewable or extendible at the option of the obligor for a period ending more than one year after such date) and liabilities in respect of retiree benefits other than pensions for which the Restricted Subsidiaries are required to accrue pursuant to Statement of Financial Accounting Standards No. 106;

	(2) investments in subsidiaries that are not Restricted Subsidiaries, including, without limitation, PMC; and

	(3) all goodwill, trade names, trademarks, patents, unamortized debt discount, unamortized expense incurred in the issuance of debt and other tangible assets.

“Guarantor Senior Indebtedness” means the principal of, premium on, if any, and interest on (including interest accruing after the filing of a petition initiating any proceeding pursuant to any bankruptcy law, whether or not allowable as a claim in such proceeding) and other amounts due on or in connection with any Indebtedness of any Guarantor, whether outstanding on the date of the Indenture or thereafter created, incurred or assumed, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not rank equal with the Guarantees. Without limiting the generality of the foregoing, “Guarantor Senior Indebtedness” shall include the principal of, premium, if any, and interest (including interest accruing after the filing of a petition initiating any proceeding pursuant to any bankruptcy law, whether or not allowable as a claim in such proceeding) on all obligations of every nature of any Guarantor under the Bank Credit Facility, the Indenture and any interest rate or foreign exchange agreement now existing or hereinafter entered into by any Guarantor with any lender under the Bank Credit Facility, including, without limitation, all fees, expenses (including fees and expenses of counsel), claims, charges and indemnity obligations. Notwithstanding the foregoing, “Guarantor Senior Indebtedness” shall not include (1) Indebtedness of any Guarantor that is expressly subordinated in right of payment to such Guarantor’s Guarantee, (2) Indebtedness of any Guarantor that by operation of law is subordinate to any general unsecured obligations of such Guarantor, (3) Indebtedness of any Guarantor to the extent incurred in violation of the restrictions described under “Restrictions on Secured Debt” and “Restrictions on Sale and Lease-back Transactions,” (4) Indebtedness of any Guarantor to Pulte or any of its Subsidiaries, (6) any liability for federal, state, local or other taxes owed or owing by any Guarantor, and (vii) trade payables owed or owing by any Guarantor.

“Indebtedness” means (1) any liability of any person (A) for borrowed money, or (B) evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation) given in connection with the acquisition of any businesses, properties or assets of any kind (other than a trade payable or a current liability arising in the ordinary course of business), or (C) for the payment of money relating to a Capitalized Lease Obligation or (D) for all Redeemable Capital Stock valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (2) any liability of others described in the preceding clause (1) that such person has guaranteed or that is otherwise its legal

liability; (3) all Indebtedness referred to in (but not excluded from) clauses (1) and (2) above of other persons and all dividends of other persons, the payment of which is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Security Interest upon or in property (including, without limitation, accounts and contract rights) owned by such person, even though such person has not assumed or become liable for the payment of such Indebtedness; and (4) any amendment, supplement, modification, deferral, renewal, extension or refunding or any liability of the types referred to in clauses (1), (2) and (3) above.

“Non-Recourse Land Financing” means any Indebtedness of Pulte or any Restricted Subsidiary for which the holder of such Indebtedness has no recourse, directly or indirectly, to Pulte or such Restricted Subsidiary for the principal of, premium, if any, and interest on such Indebtedness, and for which Pulte or such Restricted Subsidiary is not, directly or indirectly, obligated or otherwise liable for the principal of, premium, if any, and interest on such Indebtedness, except pursuant to mortgages, deeds of trust or other Security Interests or other recourse, obligations or liabilities in respect of specific land or other real property interests of ours or such Restricted Subsidiary; provided that recourse, obligations or liabilities of ours or such Restricted Subsidiary solely for indemnities, covenants or breach of warranty representation or covenant in respect of any Indebtedness will not prevent Indebtedness from being classified as Non-Recourse Land Financing.

“Redeemable Capital Stock” means any capital stock of Pulte or any Subsidiary that, either by its terms, by the terms of any security into which it is convertible or exchangeable or otherwise, (1) is or upon the happening of an event or passage of time would be required to be redeemed on or prior to the final stated maturity of the securities or (2) is redeemable at the option of the holder thereof at any time prior to such final stated maturity or (3) is convertible into or exchangeable for debt securities at any time prior to such final stated maturity.

“Restricted Subsidiary” means any Guarantor and any other of our subsidiaries as of the date of the Indenture and any successor to such Guarantor or subsidiary other than (i) First Heights Bank, Pulte Financial Companies, Inc., PMC, Pulte Diversified Companies, Inc. or North American Builders Indemnity Corporation; (ii) Del Webb Mortgage Corporation and (iii) any successor to any of the subsidiaries described in clauses (i) and (ii).

“Sale and Leaseback Transaction” means a sale or transfer made by us or a Restricted Subsidiary (except a sale or transfer made to Pulte or another Restricted Subsidiary) of any property which is either (a) a manufacturing facility, office building or warehouse whose book value equals or exceeds 1% of Consolidated Net Tangible Assets as of the date of determination or (b) another property (not including a model home) which exceeds 5% of Consolidated Net Tangible Assets as of the date of determination, if such sale or transfer is made with the agreement, commitment or intention of leasing such property to Pulte or a Restricted Subsidiary.

“Secured Debt” means any Indebtedness which is secured by (i) a Security Interest in any of our property or the property of any Restricted Subsidiary or (ii) a Security Interest in shares of stock owned directly or indirectly by us or a Restricted Subsidiary in a corporation or in equity interests owned by us or a Restricted Subsidiary in a partnership or other entity not organized as a corporation or in our rights or the rights of a Restricted Subsidiary in respect of Indebtedness of a corporation, partnership or other entity in which we or a Restricted Subsidiary has an equity interest; provided that “Secured Debt” shall not include Non-Recourse Land Financing that consists exclusively of “land under development,” “land held for future development” or “improved lots and parcels,” as such categories of assets are determined in accordance with generally accepted accounting principles. The securing in the foregoing manner of any such Indebtedness which immediately prior thereto was not Secured Debt shall be deemed to be the creation of Secured Debt at the time security is given.

“Security Interest” means any mortgage, pledge, lien, encumbrance or other security interest which secures the payment or performance of an obligation.

“Senior Indebtedness” means the principal of (and premium, if any, on) and interest on (including interest accruing after the occurrence of an Event of Default or after the filing of a petition initiating any proceeding pursuant to any bankruptcy law whether or not such interest is an allowable claim in any such proceeding) and other amounts due on or in connection with any of our Indebtedness, whether outstanding on the date hereof or hereafter created, incurred or assumed, including under the debt securities and the Bank Credit Facility, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to the debt securities. Notwithstanding the foregoing, “Senior Indebtedness” shall not include (1) our Indebtedness that is expressly subordinated in right of payment to any of our Senior Indebtedness, (2) our Indebtedness that by operation of law is subordinate to any of our general unsecured obligations, (3) our Indebtedness to any Subsidiary, (4) Indebtedness incurred in violation of the restrictions described under “Restrictions on Secured Debt” and “Restrictions on Sale and Lease-back Transactions,” (5) to the extent it might constitute Indebtedness, any liability for federal, state or local taxes or other taxes, owed or owing by us, and (6) to the extent it might constitute Indebtedness, trade account payables owed or owing by us.

“Significant Subsidiary” means any Subsidiary (i) whose revenues exceed 10% of our total revenues, in each case for the most recent fiscal year, or (ii) whose net worth exceeds 10% of our total stockholders’ equity, in each case as of the end of the most recent fiscal year.

“Subsidiary” means any corporation of which at the time of determination by us, directly and/or indirectly through one or more Subsidiaries, owns more than 50% of the shares of Voting Stock.

“Voting Stock” means any class or classes of capital stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of any person (irrespective of whether or not, at the time, stock of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency).

Neither we, the Guarantors nor the Restricted Subsidiaries will consolidate or merge into or sell, assign, transfer or lease all or substantially all of its assets to another person unless:


	(1) the person is a corporation organized under the laws of the United States of America or any state thereof;

	(2) the person assumes by supplemental indenture all the obligations of Pulte or such guarantor or Restricted Subsidiary, as the case may be, relating to the senior notes, the Guarantees and the Indenture, as the case may be, and shall also expressly assume by an amendment or supplement executed and delivered to the Trustee, in form satisfactory to the Trustee, all of our covenants and other obligations under the registration rights agreement; and

	(3) immediately after the transaction no Event of Default exists; provided that this clause (3) will not restrict or be applicable to a merger, consolidation or liquidation of a Restricted Subsidiary or Guarantor with or into us or another subsidiary that is wholly-owned, directly or indirectly, by us that is, or concurrently with the completion of such merger, consolidation or liquidation becomes, a Guarantor or a Restricted Subsidiary that is wholly-owned, directly or indirectly, by us.

Upon any such consolidation, merger, sale, assignment or transfer, the successor corporation will be substituted for us or such Guarantor or Restricted Subsidiary (including any merger or consolidation described in the proviso at the end of the immediately preceding sentence), as applicable, under the Indenture. The successor corporation may then exercise every power and right of ours or such Guarantor or Restricted Subsidiary under the Indenture, and we or such Guarantor or Restricted Subsidiary, as applicable, will be released from all of our respective liabilities and obligations in respect of the senior notes and the Indenture. If we or any Guarantor or Restricted Subsidiary leases all or substantially all of its assets, the lessee corporation will be the successor to us or such Guarantor or Restricted Subsidiary and may exercise every power and right of ours or such Guarantor or Restricted Subsidiary, as the case may

be, under the Indenture, but we or such Guarantor or Restricted Subsidiary, as the case may be, will not be released from our respective obligations to pay the principal of and premium, if any, and interest, if any, on the senior notes.

An Event of Default with respect to the new notes is defined in the Indentures as being:


	(1) default for 30 days in the payment of any installment of interest on the new notes;

	(2) default in the payment of any principal on the new notes;

	(3) default or breach by us, the Guarantors or any Significant Subsidiary in the performance of any of the agreements in the Indenture applicable to the senior notes (other than a default or breach specifically dealt with elsewhere in the Indenture) which shall not have been remedied within a period of 60 days after receipt of written notice by us from the Trustee or by us and such Trustee from the Holders of not less than 25% in principal amount of the debt securities issued under the Indenture then outstanding;

	(4) any default under an instrument evidencing or securing any of our Indebtedness or the Indebtedness of any Guarantor or Restricted Subsidiary (other than Non-Recourse Land Financing) aggregating $10,000,000 or more in aggregate principal amount, resulting in the acceleration of such Indebtedness, or due to the failure to pay such Indebtedness at maturity;

	(5) any Guarantee in respect of the new notes by a Guarantor that is a Significant Subsidiary shall for any reason cease to be, or be asserted in writing by any Guarantor thereof or us not to be, in full force and effect, and enforceable in accordance with its terms (other than by reason of the termination of the Indenture or the release or discharge of any such Guarantee in accordance with the terms of the Indenture), provided, however, that if we or any Guarantor asserts in writing that any such Guarantee is not in full force and effect and enforceable in accordance with its terms, such assertion shall not constitute an Event of Default for purposes of this paragraph (if (i) such written assertion is accompanied by an opinion of counsel to the effect that, as a matter of law, the defect or defects rendering such Guarantee unenforceable can be remedied within 10 days of the date of such assertion, (ii) we or such Guarantor delivers an officers’ certificate to the effect that we or such Guarantor represents that such defect or defects shall be so remedied within such 10-day period, and (iii) such defect or defects are in fact so remedied within such 10-day period); and

	(6) certain events of bankruptcy, insolvency or reorganization involving us or any Significant Subsidiary.

The Indenture provides that if an Event of Default (other than an Event of Default described in clause (6) above) shall have occurred and be continuing, either the Trustee or the holders of at least 25% in aggregate principal amount of debt securities issued under the Indenture then outstanding may declare the principal amount of all the debt securities and interest, if any, accrued thereon to be due and payable immediately, but upon certain conditions such declaration may be annulled and past defaults (except, unless cured, a default in payment of principal of or interest on debt securities of that series) may be waived by the holders of a majority in principal amount of the debt securities of that series then outstanding. If an Event of Default described in clause (6) above occurs and is continuing, then the principal amount of all the debt securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any holder.

The Indenture contains a provision entitling the Trustee, subject to the duty of the Trustee during default to act with the required standard of care, to be indemnified by the holders of the new notes before proceeding to exercise any right or power under the Indenture at the request of the holders of the senior notes. The Indenture also provides that the holders of a majority in principal amount of the outstanding debt securities issued under the Indenture may direct the time, method and place of conducting any

No holder of new notes will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless: (1) the holder shall have previously given the Trustee written notice of an Event of Default with respect to the new notes, (2) the holders of at least 25% in aggregate principal amount of the outstanding debt securities issued under the Indenture shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, (3) the Trustee shall have failed to institute any such proceeding for 60 days after its receipt of such notice and (4) no direction inconsistent with such written request has been given to the Trustee during the 60-day period by the holders of a majority in principal amount of the outstanding debt securities under the Indenture. However, any right of a holder of new notes to receive payment of the principal of and any interest on the new notes on or after the dates expressed in the senior notes and to institute suit for the enforcement of any such payment on or after such dates shall not be impaired or affected without the consent of such Holder.

The Indenture contains a covenant that we will file annually with the Trustee a certificate as to the absence of any default or specifying any default that exists.

We and the Trustee, with the consent of the holders of at least a majority of the principal amount of the outstanding debt securities issued under the Indenture, may execute supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the Indenture or modifying the rights of the holders of the new notes, except that no such supplemental indenture may, without the consent of the holder of each outstanding security affected by the supplemental indenture, among other things:


	(1) extend the final maturity of the new notes, or reduce the rate or extend the time of payment of interest on the new notes, or reduce the principal amount of the new notes, or impair the right to institute suit for payment of the new notes;

	(2) reduce the percentage of debt securities, the consent of the holders of which is required for any such supplemental indenture, for any waiver of compliance with certain provisions of the Indenture or certain defaults under the Indenture and their consequences provided in the Indenture;

	(3) modify any of the provisions regarding the modification of the Indenture, waivers of past defaults and waivers of certain covenants, except to increase any percentage or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding security affected thereby.

Our Board of Directors does not have the power to waive any of the covenants of the Indenture including those relating to consolidation, merger or sale of assets.

We and the Trustee may modify or amend provisions of the Indenture without the consent of any holder for any of the following purposes:


	(1) to evidence the succession of another person to us or any Guarantor under the Indenture and the new notes;

	(2) to add to our covenants or the covenants of any Guarantor for the benefit of the holders of the new notes or to surrender any right or power conferred upon us or such Guarantor by the Indenture;

	(3) to add Events of Default for the benefit of the holders of the new notes;

	(4) to change or eliminate any provisions of the Indenture, provided that any such change or elimination shall become effective only when there are no outstanding new notes;

	(5) to secure any debt securities under the Indenture;


	(6) to establish the form or terms of the debt securities of any series;

	(7) to add Guarantors;

	(8) to provide for the acceptance of appointment by a successor Trustee or facilitate the administration of the trusts under the Indenture by more than one Trustee;

	(9) to close the Indenture to authentication and delivery of additional series of debt securities, and to cure any ambiguity, defect or inconsistency in the Indenture, provided such action does not adversely affect the interests of holders of the new notes; or

	(10) to supplement any of the provisions of the Indentures to the extent necessary to permit or facilitate defeasance and discharge of the new notes, provided that such action shall not adversely affect the interests of the holders of the new notes in any material respect.

The holders of at least a majority in principal amount of the outstanding debt securities may, on behalf of the holders of all debt securities, waive any past default under the Indenture. However, they may not waive a default (1) in the payment of the principal of (or premium, if any) or any interest on any debt security or (2) in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the holder of each outstanding debt security affected.

Defeasance and Discharge. The Indenture provides that we will be discharged from any and all obligations in respect of the debt securities of that series (except for certain obligations to register the transfer or exchange of debt securities, replace stolen, lost, destroyed or mutilated debt securities, maintain offices or agencies and hold moneys for payment in trust) upon the deposit with the Trustee, in trust, of money, government obligations or a combination thereof, which through the payment of interest and principal thereof in accordance with their terms will provide money in an amount sufficient to pay the principal of (and premium, if any) and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the stated maturity date of the payments in accordance with the terms of the Indenture and the debt securities. This type of discharge may only occur if there has been a change in applicable federal law or we have received from, or there has been published by, the United States Internal Revenue Service a ruling to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of that discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if the discharge had not occurred. In addition, this type of discharge may only occur so long as no Event of Default or event which, with notice or lapse of time, would become an Event of Default with respect to the debt securities of that series has occurred and being continuing on the date of deposit of cash and/or government securities are deposited in trust and other conditions specified in the Indenture are satisfied. The term “government obligations” means securities of the government which issued the currency in which the debt securities of the series are denominated or in which interest is payable or of government agencies backed by the full faith and credit of that government.

Defeasance of Certain Covenants. The Indenture also provides that we may omit to comply with the covenants described above under “Certain Covenants” and “Consolidation, Merger and Sale of Assets” with respect to the debt securities of that series if we comply with the following conditions. In order to exercise this option, we will be required to deposit with the Trustee money, government obligations or a combination thereof, which through the payment of interest and principal thereof in accordance with their terms will provide money in an amount sufficient to pay the principal of (and premium, if any) and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the stated maturity date of the payments in accordance with the terms of the Indenture and the debt securities. We will also be required to deliver to the Trustee an opinion of counsel to the effect that the deposit and related covenant defeasance will not cause the holders of the debt securities of that series to recognize income, gain or loss for federal income tax purposes and that those holders will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been

Covenant Defeasance and Events of Default. In the event we exercise our option to effect covenant defeasance with respect to the debt securities of any series and those debt securities are declared due and payable because of the occurrence of any Event of Default, the amount of money and government obligations on deposit with the Trustee will be sufficient to pay amounts due on the debt securities of that series at the time of their stated maturity dates but may not be sufficient to pay amounts due on the debt securities at the time of the acceleration resulting from such Event of Default. However, we shall remain liable for such payments.

Bank One Trust Company, National Association (successor-in-interest to The First National Bank of Chicago) is trustee under the Indenture, pursuant to which certain of our debt securities are outstanding and pursuant to which the senior notes are to be issued. Bank One Trust Company, National Association may maintain normal banking relationships with us (and is an affiliate of Bank One, NA, which participates in and acts as co-agent in our Bank Credit Facility and provides cash management, banking and other services for us in the normal course of our business and an affiliate of Banc One Capital Markets, Inc., an initial purchaser in this offering).

The new notes will be issued in the form of one or more global notes, without interest coupons. Such global notes will be deposited on the issue date with DTC and registered in the name of Cede & Co., as nominee of DTC, or will remain in the custody of the trustee under the Indenture pursuant to the FAST Balance Certificate Agreement between DTC and the trustee. Beneficial interests in the global notes may not be exchanged for certificated notes except in the circumstances described below. All interests in global notes may be subject to the procedures and requirements of DTC.

Exchanges of beneficial interests in one global security for interests in another global security will be subject to the applicable rules and procedures of DTC and its direct and indirect participants. Any beneficial interest in one of the global notes that is transferred to a person who takes delivery in the form of an interest in another global security will, upon transfer, cease to be an interest in that global security and become an interest in the global security to which the beneficial interest is transferred and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in the global security to which the beneficial interest is transferred for as long as it remains an interest in that global security.

The descriptions of the operations and procedures of DTC set forth below are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to change by them from time to time. We do not take any responsibility for these operations or procedures, and investors are urged to contact the relevant system or its participants directly to discuss these matters.

DTC has advised us that it is a limited purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act. DTC holds securities for its participants and facilitates the clearance and settlement of securities transactions between participants through electronic book-entry changes in accounts of its participants, which eliminates the need for physical movement of certificates. Participants include

securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust companies that clear through or maintain a direct or indirect custodial relationship with a participant (“indirect participants”). Investors who are not participants may beneficially own senior notes held by or on behalf of DTC only through participants or indirect participants. The rules applicable to DTC and its participants are on file with the SEC.

Upon the issuance of a global note, DTC or its custodian will credit, on its internal system, the respective principal amount of the individual beneficial interests represented by such global note to the accounts of the persons who have accounts with DTC. Such accounts initially will be designated by or on behalf of the initial purchasers. Ownership of beneficial interests in the global note will be limited to persons who have accounts with DTC (“participants”) or persons who hold interests through participants. Ownership of beneficial interests in the global note will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC or its nominee (with respect to interests of participants) and the records of participants and indirect participants (with respect to interests of persons other than participants).

So long as DTC or its nominee is the registered owner or holder of a global note, DTC or such nominee, as the case may be, will be considered the sole record owner or holder of the senior notes represented by a global note for all purposes under the Indenture and the senior notes. Except as set forth herein, owners of beneficial interests in a global note will not be entitled to have new notes represented by such global note registered in their names, will not receive or be entitled to receive physical delivery of new notes in definitive certificated form, and will not be considered holders of the new notes for any purposes under the Indenture. Accordingly, each person owning a beneficial interest in a global note must rely on the procedures of DTC and, if such person is not a participant, on the procedures of the participant through which such person directly or indirectly owns its interest, to exercise any rights of a holder under the Indenture. We understand that under existing industry practices, if we request any action of holders or any owner of a beneficial interest in a global note desires to give any notice or take any action that a holder is entitled to give or take under the Indenture, DTC would authorize the participants holding the relevant beneficial interests to give such notice to take such action, and such participants would authorize beneficial owners owning through such participants to give such notice or take such action or would otherwise act upon the instructions of beneficial owners owning through them.

Payments of the principal of, premium, if any, and interest on a global note will be made to DTC or its nominee, as the case may be, as the registered owner. Neither we, the Trustee nor any paying agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

We expect that DTC or its nominee, upon receipt of any payment of principal of, premium, if any, or interest in respect of a global note will credit participants’ accounts with payments in amounts proportionate to their respective beneficial ownership interests in the principal amount of such global note, as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in a global note held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. The participants will be responsible for such payments.

The Indenture provides that, if the Depositary notifies us that it is unwilling or unable to continue as Depositary for the global notes or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act and we do not appoint a successor depositary within ninety days, or if 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 new notes, then we will issue certificated notes in exchange for the global note(s). In addition, we may at any time and in our sole discretion determine not to have the new notes represented by a global note and, in such event, will issue

certificated notes in exchange for the global note(s). In any such instance, an owner of a beneficial interest in a global note will be entitled to physical delivery of certificated notes equal in principal amount to its beneficial interest and to have the certificated notes registered in its name. We expect that instructions for registering the certificated notes would be based upon directions received from the Depositary with respect to ownership of the beneficial interests in a global note.

Although DTC has agreed to the procedures described above in order to facilitate transfers of interests in a global note among participants of DTC, it is under no obligation to perform such procedures and such procedures may be discontinued at any time. Neither we nor the Trustee will have any responsibility for the performance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.

According to DTC, the foregoing information with respect to DTC has been provided by it for informational purposes only and is not intended to serve as a representation, warranty, or contract modification of any kind. The information contained herein concerning DTC and its book-entry system has been obtained from sources believed to be reliable, but we take no responsibility for the accuracy thereof.

We will make all payments of principal of, premium, if any, and interest on the global notes in immediately available funds to DTC.

The following is a summary of the principal general federal income tax consequences to a holder of new notes (a “United States Holder”) who is (i) a citizen or resident of the United States, (ii) a corporation, partnership or other entity treated as a corporation or a partnership for United States federal income tax purposes created or organized in or under the laws of the United States, any state thereof or the District of Columbia (unless, in the case of a partnership, Treasury regulations provide otherwise), (iii) an estate whose income is subject to United States federal income tax regardless of its source, or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust. Notwithstanding the preceding sentence, to the extent provided in Treasury regulations, certain trusts in existence on August 20, 1996, and treated as United States persons prior to such date, that elect to continue to be treated as United States persons will also be United States Holders.

The following summary deals only with new notes held as capital assets by purchasers at the issue price who are United States Holders and not with special classes of holders, such as dealers in securities or currencies, financial institutions, life insurance companies, persons holding senior notes as a hedge against or which are hedged against currency risks, persons who are not United States Holders and persons whose functional currency is not the U.S. dollar. A person considering the purchase of new notes should consult his or her own tax advisor concerning these matters and as to the tax treatment under foreign, state and local tax laws and regulations.

This summary is based upon the Internal Revenue Code of 1986, as amended (the “Code”), Treasury regulations, Internal Revenue Service (“IRS”) rulings and pronouncements and judicial decisions now in effect, all of which are subject to change at any time. Changes in this area of law may be applied retroactively in a manner that could cause the tax consequences to vary substantially from the consequences described below, possibly adversely affecting a United States Holder. The authorities on which this summary is based are subject to various interpretations, and it is therefore possible that the federal income tax treatment of the purchase, ownership and disposition of the senior notes may differ from the treatment described below.

There will be no federal income tax consequences to United States holders of exchanging original notes for new notes under the exchange offer because the exchange offer will occur by operation of the terms of the original notes and will not result in any material alteration in the terms of the original notes. Each exchanging holder will have the same adjusted tax basis and holding period in the new notes as it had in the original notes immediately before the exchange.

As a general rule, interest paid or accrued on the new notes will be treated as ordinary income to United States Holders. A United States Holder using an accrual method of accounting for federal income tax purposes is required to include interest paid or accrued on the new notes in ordinary income as interest accrues, while a United States Holder using the cash receipts and disbursements method of accounting for federal income tax purposes must include interest in ordinary income when payments are received by (or made available for receipt to) the holder.

We intend to take the position that the new notes do not, as of the issue date, represent contingent payment debt because the likelihood of paying an increased rate of interest as a result of a Registration Default is remote. A United States Holder may not take a contrary position unless such contrary position is disclosed in the proper manner to the IRS. United States Holders should consult their tax advisors regarding the tax consequences of the senior notes being treated as contingent payment debt.

If, contrary to current expectations, we pay additional interest, or if the IRS successfully asserts that these contingent payments were not remote as of the issue date, the amount and the timing of the interest income that a United States Holder is required to include in taxable income, as well as any gain on a sale of the senior notes, might have to be redetermined, or recharacterized as ordinary income.

A United States Holder’s tax basis in a new note will generally be its cost. Upon the sale, exchange, redemption or retirement of a new note, a United States Holder will generally recognize gain or loss on such sale, exchange, redemption or retirement equal to the difference between the amount realized (not including any amounts attributable to accrued and unpaid interest) and the holder’s tax basis in the new note. Long-term capital gain of a non-corporate United States Holder is generally subject to a maximum tax rate of 20% in respect of senior notes held for more than one year.

Interest payments and payments of principal and any premium with respect to a new note will be reported to the extent required by the Code to the United States Holders and the IRS. These amounts will ordinarily not be subject to withholding of United States federal income tax. However, a backup withholding tax will apply to these payments if a United States Holder fails to supply us or our agent with the holder’s taxpayer identification number or to report all interest and dividends required to be shown on its federal income tax returns. The backup withholding tax rate of 30.5%, in effect for payments made on or after August 7, 2001, will be reduced to 30% for payments made during the years 2002 and 2003, 29% for payments made during the years 2004 and 2005, and 28% for payments made during the years 2006 through 2010. For payments made after 2010, the backup withholding tax rate will be increased to 31%.

Each broker-dealer that receives new notes for its own account under the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of those notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer for resales of new notes received in exchange for original notes that had been acquired as a result of market-making or other trading activities. We have agreed that, for a period of 180 days after the expiration date of the

exchange offer, we will make this prospectus, as it may be amended or supplemented, available to any broker-dealer for use in connection with any such resale. Any broker-dealers required to use this prospectus and any amendments or supplements to this prospectus for resales of the new notes must notify us of this fact by checking the box on the letter of transmittal requesting additional copies of these documents or by writing or telephoning us. See “WHERE YOU CAN FIND MORE INFORMATION.”

Notwithstanding the foregoing, we are entitled under the registration rights agreement to suspend the use of this prospectus by broker-dealers under specified circumstances. For example, we may suspend the use of this prospectus if:


	•	the SEC or any state securities authority requests an amendment or supplement to this prospectus or the related registration statement or additional information;

	•	the SEC or any state securities authority issues any stop order suspending the effectiveness of the registration statement or initiates proceedings for that purpose;

	•	we receive notification of the suspension of the qualification of the new notes for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose;

	•	the suspension is required by law;

	•	the suspension is taken for valid business reasons, including the acquisition or divestiture of assets or a material corporate transaction; or

	•	an event occurs which makes any statement in this prospectus untrue in any material respect or which constitutes an omission to state a material fact in this prospectus.

If we suspend the use of this prospectus, the 180-day period referred to above will be extended by a number of days equal to the period of the suspension.

We will not receive any proceeds from any sale of new notes by broker-dealers. New notes received by broker-dealers for their own account under the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on those notes or a combination of those methods, at market prices prevailing at the time of resale, at prices related to prevailing market prices or at negotiated prices. Any resales may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from the selling broker-dealer or the purchasers of the new notes. Any broker-dealer that resells new notes received by it for its own account under the exchange offer and any broker or dealer that participates in a distribution of the new notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any resale of new notes and any commissions or concessions received by these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

We have agreed to pay all expenses incidental to the exchange offer other than commissions and concessions of any broker or dealer and will indemnify holders of the senior notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act.

The validity of the securities offered in this exchange offer will be passed upon for us by Honigman Miller Schwartz and Cohn, Detroit, Michigan. A partner of Honigman Miller, Alan E. Schwartz, is a Director of Pulte Homes, Inc. As of October 1, 2001 approximately 4 Honigman Miller attorneys beneficially owned a total of approximately 59,250 shares of Pulte Homes, Inc.’s common stock and options to purchase an additional 4,000 shares of common stock.

The consolidated financial statements of Pulte Homes, Inc. appearing (or incorporated by reference) in Pulte Homes, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2000 have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included (or incorporated by reference) therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.

The consolidated financial statements of Del Webb Corporation as of June 30, 2000 and 1999, and for each of the years in the three-year period ended June 30, 2000, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG, LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.

We file annual, quarterly and special reports, proxy statements and other documents with the SEC. Our SEC filings are available to the public over the internet at the SEC’s Web site at http://www.sec.gov. You may also read and copy any document we file with the SEC at the SEC’s public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549, as well as any regional offices of the SEC located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at 1-800-SEC-0330 for further information about its public reference facilities and their copy charges.

Our common stock is listed on the New York Stock Exchange. You may also inspect the information we file with the SEC at the New York Stock Exchange, 20 Broad Street, New York, New York 10005.

We have filed with the SEC a registration statement on Form S-4 to register the new notes to be issued in connection with this exchange offer. This prospectus, which forms a part of the registration statement, does not contain all of the information included or incorporated in the registration statement. The full registration statement can be obtained from the SEC as indicated above.

The SEC allows us to incorporate by reference the information we file with them. This allows us to disclose important information to you by referencing those filed documents. We have previously filed the following documents with the SEC and are incorporating them by reference into this prospectus:


	•	Pulte’s annual report on Form 10-K for the fiscal year ended December 31, 2000;

	•	Pulte’s quarterly reports on Form 10-Q for the quarters ended March 31, 2001 and June 30, 2001;

	•	Pulte’s current reports on Form 8-K, dated February 12, 2001, February 23, 2001, May 2, 2001, July 25, 2001, July 26, 2001, July 27, 2001, July 31, 2001 and two dated August 31, 2001;

	•	Pulte’s joint proxy statement/prospectus, dated June 28, 2001;

	•	Del Webb’s annual report on Form 10-K for the fiscal year ended June 30, 2000;

	•	Del Webb’s quarterly reports on Form 10-Q for the three quarters ended September 30, 2000, December 31, 2000 and March 31, 2001; and

	•	Del Webb’s current reports on Form 8-K dated May 2, 2001, July 25, 2001 and July 31, 2001.

We also are incorporating by reference any future filings made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act until the completion of the exchange offer. The most recent information that we file with the SEC automatically updates and supersedes more dated information.

You can obtain a copy of any documents which are incorporated by reference in this prospectus, except for exhibits which are specifically incorporated by reference into those documents, at no cost, by writing or telephoning us at:

To ensure timely delivery of the documents, you should make your request by , 2001. If you request any incorporated documents from us, we will mail them to you by first class mail, or another equally prompt means, within one business day after we receive your request.

You should rely only on the information contained or incorporated by reference in this document or to which we have referred you. We have not authorized any other person to provide you with different information. This document may only be used where it is legal to sell these securities. You should assume that the information in this document is accurate as of the date on the front cover of this prospectus only. Our business, financial condition, results of operations and prospects may have changed since that date.

All dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

Under Sections 561-571 of the Michigan Business Corporation Act, directors and officers of a Michigan corporation may be entitled to indemnification by the corporation against judgments, expenses, fines and amounts paid by the director or officer in settlement of claims brought against them by third persons or by or in the right of the corporation if those directors and officers acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the corporation or its shareholders.

Our Articles of Incorporation provide that our directors shall not be personally liable to us or our shareholders for monetary damages for breach of the director’s fiduciary duty. However, our Articles do not eliminate or limit the liability of a director for any of the following: (i) a breach of the director’s duty of loyalty to us or our shareholders; (ii) acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law; (iii) a violation of Section 551(1) of the Michigan Business Corporation Act; (iv) a transaction from which the director derived an improper personal benefit; or (v) an act or omission occurring before the effective date of the Articles. In addition, our Bylaws generally provide that, to the fullest extent permitted by applicable law, we shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not by or in the right of the corporation), including a shareholders’ derivative action, by reason of the fact that he is or was our director, officer, employee or agent or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

We have obtained Directors’ and Officers’ liability insurance. The policy provides for $40 million in coverage including prior acts dating to our inception and liabilities under the Securities Act.


	(1)	To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:


	(i)	To include any prospectus required by Section 10(a)(3) of the Securities Act;

	(ii)	To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;


	(iii)	To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.


	(2)	That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

	(3)	To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.


	(b)	The undersigned Registrants hereby undertake that, for purposes of determining any liability under the Securities Act, each filing of the Registrants’ annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

	(c)	Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on October 1, 2001.


	By:	/s/ JOHN R. STOLLER



	John R. Stoller,
	Senior Vice President, General Counsel
	and Secretary

Each of the undersigned officers and directors of Pulte Homes, Inc. does hereby severally constitute and appoint Roger A. Cregg, Vincent J. Frees, Bruce E. Robinson and John R. Stoller, and each of them acting alone, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933) and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated as of October 1, 2001.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on October 1, 2001.


	*By:	/s/ JOHN R. STOLLER



	John R. Stoller,
	Senior Vice President, General Counsel
	and Secretary

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on October 1, 2001.

* Filed herewith. EX-4.7 3 k64962ex4-7.txt INDENTURE SUPPLEMENT DATED AUGUST 6, 2001 1 EXHIBIT 4.7 ---------------------------------------------------------- PULTE CORPORATION ------------------- INDENTURE SUPPLEMENT DATED AS OF JULY 31, 2001 ------------------- BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION (successor-in-interest to the First National Bank of Chicago) TRUSTEE ---------------------------------------------------------- SENIOR DEBT SECURITIES 2 INDENTURE SUPPLEMENT dated as of July 31, 2001, among PULTE HOMES, INC. (formerly known as PULTE CORPORATION), a Michigan corporation (the "Company"), located at 33 Bloomfield Hills Parkway, Suite 200, Bloomfield Hills, Michigan 48304, BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION (successor-in-interest to the First National Bank of Chicago) (the "Trustee"), PULTE HOME CORPORATION ("Pulte Home"), the wholly-owned subsidiaries of Pulte Home set forth on the attached Exhibit A (Pulte Home and such subsidiaries, all together the "Existing Guarantors"), Del Webb Corporation ("Del Webb") and the wholly-owned subsidiaries of Del Webb set forth on the attached Exhibit B (Del Webb and such subsidiaries, all together the "New Guarantors") (the Existing Guarantors and the New Guarantors are referred to in the Indenture, as amended by this Indenture Supplement and as may be further amended, collectively as the "Guarantors" and individually as a "Guarantor") The Company, the Trustee and the Existing Guarantors have entered into 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 and the Indenture Supplement dated as of April 3, 2000 (the "Indenture"), pursuant to which the Trustee acts as trustee for the holders of the Company's 7.3% Senior Notes due October 24, 2005, the Company's 7.625% Senior Notes due October 15, 2017, the Company's 9.5% Senior Notes due April 1, 2003 and the Company's 8.125% Senior Notes, due March 1, 2011. Capitalized terms used in this Indenture Supplement and not otherwise defined herein shall have the meanings set forth in the Indenture. The parties desire to add the following companies as guarantors of the Guaranteed Obligations under the Indenture: Anthem Arizona L.L.C. Asset Five Corp. Asset Seven Corp. Bellasera Corp. Del Webb California Corp. Del Webb Communities, Inc. 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. 2 3 Del Webb's Coventry Homes of Nevada, Inc. Del Webb's Spruce Creek Communities, Inc. Del Webb's Sunflower of Tucson, Inc. Del E. Webb Development Co., L.P. Del E. Webb Foothills Corporation Mountain View Two, LLC New Mexico Asset Corporation New Mexico Asset Limited Partnership PH 1 Acquisition Corporation PH 2 Acquisition Corporation Spruce Creek South Utilities, Inc. Terravita Corp. Terravita Home Construction Co. Section 901 of the Indenture permits the Company and the Trustee to execute supplements to the Indenture for the purpose of adding guarantors of the Guaranteed Obligations without the consent of any Holders. 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 Securities or of any series thereof, as follows: 1. The following companies are hereby added as guarantors of the Guaranteed Obligations under the Indenture: Anthem Arizona L.L.C. Asset Five Corp. Asset Seven Corp. Bellasera Corp. Del Webb California Corp. Del Webb Communities, Inc. Del Webb Corporation Del Webb Golf Corp. 3 4 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. Del E. Webb Development Co., L.P. Del E. Webb Foothills Corporation Mountain View Two, LLC New Mexico Asset Corporation New Mexico Asset Limited Partnership PH 1 Acquisition Corporation PH 2 Acquisition Corporation Spruce Creek South Utilities, Inc. Terravita Corp. Terravita Home Construction Co. 2. The Indenture, as supplemented by and together with this Indenture Supplement, shall be read, taken and construed as one and the same instrument. 3. 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. 4. 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. [signatures appear on pages following] 4 5 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, NATIONAL ASSOCIATION as Trustee By: ---------------------------------------- Name: Title: PULTE CORPORATION Attest: By: ------------------------- ---------------------------------------- Calvin R. Boyd Bruce E. Robinson, Vice President PULTE HOME CORPORATION and the Existing Guarantors listed on the attached Exhibit A Attest: By: ------------------------- ---------------------------------------- Calvin R. Boyd Bruce E. Robinson, Vice President DEL WEBB CORPORATION and the New Guarantors listed on the attached Exhibit B Attest: By: ------------------------ ---------------------------------------- Calvin R. Boyd Name: -------------------------------------- Title: ------------------------------------- 5 6 EXHIBIT A: EXISTING GUARANTORS American Title of the Palm Beaches Acquisition Corp. Carr's Grant, L.L.C. Devtex Land, L.P. Harrison Hills, LLC Homesite Solutions Corporation One Willowbrook, L.L.C. PC/BRE Development L.L.C. PC/BRE Springfield L.L.C. PC/BRE Venture L.L.C. PC/BRE Whitney Oaks L.L.C. PC/BRE Winfield L.L.C. PC/Palm Beach, Inc. PN I, Inc. Pulte Home Corporation of New England Pulte Homes of Texas, L.P. Pulte Homes Tennessee Limited Partnership Pulte Land Company, LLC Riverwalk Commerce Acquisition Corp. Wilben, LLLP 6 7 EXHIBIT B: NEW GUARANTORS Anthem Arizona L.L.C. Asset Five Corp. Asset Seven Corp. Bellasera Corp. Del Webb California Corp. Del Webb Communities, Inc. 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. Del E. Webb Development Co., L.P. Del E. Webb Foothills Corporation Mountain View Two, LLC New Mexico Asset Corporation New Mexico Asset Limited Partnership PH 1 Acquisition Corporation PH 2 Acquisition Corporation Spruce Creek South Utilities, Inc. Terravita Corp. Terravita Home Construction Co. 7 EX-4.8 4 k64962ex4-8.txt INDENTURE SUPPLEMENT DATED AUGUST 6, 2001 1 EXHIBIT 4.8 ------------------------------------------------------------------------------- PULTE HOMES, INC. ISSUER, AND BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE ------------------------- INDENTURE SUPPLEMENT TO INDENTURE DATED AS OF OCTOBER 24,1995 ------------------------- ------------------------------------------------------------------------------- DATED AS OF AUGUST 6, 2001 2 INDENTURE SUPPLEMENT, dated as of August 6, 2001 among PULTE HOMES, INC. a Michigan corporation (the "Company"), located at 33 Bloomfield Hills Parkway, Suite 200, Bloomfield Hills, Michigan 48304, and Bank One Trust Company, National Association, an Illinois national banking corporation (the "Trustee "), PULTE HOME CORPORATION ("Pulte Home"), the homebuilding subsidiaries of Pulte Home set forth on the signature pages hereto, DEL WEBB CORPORATION ("Del Webb") and the homebuilding subsidiaries of Del Webb set forth on the signature pages hereto (Pulte Home, Del Webb and their respective 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 July 31, 2001 and this Indenture Supplement, hereinafter the "Indenture"), pursuant to which one or more series of unsecured debentures, 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 7[ ]% Senior Notes due 2011 (hereinafter, the "Notes"). Pursuant to the terms of Section 901(7) of the Indenture, the parties desire to add (i) certain additional homebuilding subsidiaries in the United States of Pulte Home and (ii) Del Webb and all of its wholly-owned homebuilding subsidiaries in the United States as guarantors of the Guaranteed Obligations under the Indenture. 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, the Guarantors and the Trustee and a valid amendment of and supplement to the Indenture have been done. 3 NOW, THEREFORE, THIS INDENTURE SUPPLEMENT WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, and for other consideration the adequacy and sufficiency of which are hereby acknowledged, 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: "Additional Interest" has the meaning set forth in Exhibit A hereto. "Certificated Note" has the meaning set forth in Section 2.04 hereof. "Closing Date" means August 6, 2001. "Commission" means the Securities and Exchange Commission or any successor thereto. "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 Notes" means any of the Exchange Securities (as defined in the Registration Rights Agreement). "Exchange Offer" has the meaning set forth in the Registration Rights Agreement. "Exchange Offer Registration Statement" has the meaning set forth in the Registration Rights Agreement. "Global Note" has the meaning set forth in Section 2.04 hereof. "Global Security" means a Security bearing the legend specified in Section 204 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" has the meaning set forth in Exhibit A hereto. 2 4 "Initial Purchaser" has the meaning set forth in the Registration Rights Agreement. "Institutional Accredited Investor" means an institutional "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act. "Notes" means any of the Securities of the series designated in the second 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, any Exchange Notes issued in exchange for Notes pursuant to the Exchange Offer, any Private Exchange Notes issued in exchange for Notes pursuant to the Registration Rights Agreement, and any other Notes issued after the Closing Date under the Indenture. For purposes of the Indenture, all Notes (including, without limitation, the Exchange Notes and the Private Exchange Notes) shall vote together and otherwise constitute a single series of Securities under the Indenture. "Participant" means members of, or participants in, the Depositary. "Private Exchange Notes" means any of the Private Exchange Securities (as defined in the Registration Rights Agreement). "Prospectus" has the meaning set forth in the Registration Rights Agreement. "QIB" means a "qualified institutional buyer" as defined in Rule 144A. "Registrable Securities" has the meaning set forth in the Registration Rights Agreement. "Registration Default" has the meaning set forth in Exhibit A hereto. "Registration Rights Agreement" means that certain Registration Rights Agreement, dated as of the date hereof, between the Company and Salomon Smith Barney Inc., for itself and as representative for the other parties named therein. "Registration Statement" has the meaning set forth in the Registration Rights Agreement. "Resale Restriction Termination Date" has the meaning set forth in Exhibit A hereto. "Restricted Note" means any Note except for (i) an Exchange Note issued pursuant to the Exchange Offer, (ii) a Note which has been sold or transferred pursuant to an effective Registration Statement pursuant to the Registration Rights Agreement, (iii) a Note from which the Securities Act Legend has been removed in accordance with the provisions of this Indenture Supplement, and (iv) a Note issued upon registration of transfer of, or in exchange for, Notes which are not Restricted Notes. "Rule 144" means Rule 144 under the Securities Act. "Rule 144A" means Rule 144A under the Securities Act. "Securities Act" means the Securities Act of 1933, as amended from time to time. 3 5 "Securities Act Legend" has the meaning set forth in Exhibit A hereto. "Shelf Registration Statement" has the meaning set forth in the Registration Rights Agreement. "Transfer Certificate" has the meaning set forth in Section 5.03(a)(i) hereof. All references herein to Rule 144, Rule 144A or Rule 501 under the Securities Act, and all reference to any subsections or terms defined therein, shall in each case include all successor provisions thereto. 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 7[ ]% Senior Notes due 2011, 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 (i) any such additional Notes are issued prior to the first date on which any Registration Statement is filed with the Commission, (ii) 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, (iii) appropriate provision is made by the Company so that any such additional Notes may be tendered for Exchange Notes pursuant to the Exchange Offer and, if applicable, registered pursuant to a Shelf Registration Statement in the same manner as the Notes originally issued on the Closing Date, and (iv) any such additional Notes are not treated as issued with original issue discount for U.S. federal income tax purposes. Section 2.02. Terms of the Notes. The Stated Maturity on which the principal of the Notes shall be due and payable shall be August 1, 2011. The principal of the Notes shall bear interest at the rate of 7[ ]% per annum (subject, in the case of Notes which are Registrable Securities, to increase upon the occurrence of any Registration Default as provided in the form of Note attached hereto as Exhibit A) from August 6, 2001 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on August 1 and February 1 (each, an "Interest Payment Date") in each year, commencing February 1, 2002, to the Persons in whose names the Notes (or one or more Predecessor Securities) are registered at the close of business on July 15 or January 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 4 6 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 7[ ]% per annum (subject, in the case of Notes which are Registrable Securities, to increase upon the occurrence of any Registration Default as provided in the form of Note attached hereto as Exhibit A). Promptly following any increase in the interest rate on the Registrable Securities as the result of a Registration Default, the Company shall deliver an Officers' Certificate to the Trustee, notifying the Trustee of such Registration Default and setting forth the effective date of such increase in the interest rate on the Registrable Securities and the interest rate in effect on the Registrable Securities as a result of such Registration Default, and, in the event of any further increase in the interest rate on the Registrable Securities as the result of the continuance of a Registration Default, shall promptly deliver a similar Officers' Certificate to the Trustee. Any such increase in the interest rate on the Registrable Securities shall remain in effect until such time as all Registration Defaults have been cured or ceased to exist and the Company shall have delivered an Officers' Certificate to the Trustee to the effect that (i) all Registration Defaults have been cured or have ceased to exist and (ii) the date of such cessation or cure, whereupon the interest rate on the Registrable Securities shall cease to increase as of the date of such cessation or cure. 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 premium, if any, 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 c/o First Chicago Trust Company of New York, 14 Wall Street, 8th Floor - Window 2, New York, New York 10005, Attention: Corporate Trust Administration. The Notes are subject to redemption at the option of the Company as provided in the form of 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 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 IV of this Indenture Supplement shall survive any such defeasance or covenant defeasance and remain in full force and effect. 5 7 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 $100,000 and integral multiples of $1,000 in excess thereof; provided, however, that Exchange Notes shall be issued in denominations of $1,000 and integral multiples thereof. Section 2.04. Form. The Notes (including, without limitation, the Exchange 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 Supplemental Indenture, and the Company and the Trustee, by their execution and delivery of this Supplemental Indenture, 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 Supplemental Indenture, the provisions of this Supplemental Indenture shall govern and be controlling. The Notes issued on the date hereof will be (i) offered and sold by the Company pursuant to the Purchase Agreement and (ii) resold initially only to QIBs in reliance on Rule 144A of the Securities Act. Such Notes may thereafter be transferred to, among others, QIBs and, except as set forth below, Institutional Accredited Investors in accordance with Rule 501 of Regulation D of the Securities Act. Notes initially offered and sold in reliance on Rule 144A shall be issued initially in the form of one or more permanent global Notes in fully registered form without interest coupons ("Global Notes"). Global Notes shall also be issued on the date of this Supplemental Indenture to accommodate transfers of beneficial interests in the Notes to Institutional Accredited Investors subsequent to the initial distribution. Exchange Notes shall be issued initially in the form of one or more 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 5.03 of this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Anything herein to the contrary notwithstanding, if any Private Exchange Notes are issued, then such Private Exchange Notes shall be issued in denominations of $100,000 and integral multiples of $1,000 in excess thereof, shall provide for the payment of Additional Interest upon a Registration Default, and shall bear the Securities Act Legend until such time as any such Private Exchange Note shall cease to be a Restricted Note, in which case the Company will, at the request of the Holder, issue in exchange therefor or upon transfer thereof, an Exchange Note. Anything herein to the contrary notwithstanding, the Private Exchange Notes shall be issued as Global Notes or, if requested by any Holder thereof, as Certificated Notes. 6 8 Participants 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 Participants, 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 APPLICATION OF AMENDMENTS TO INDENTURE Section 3.01. 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, collectively, the (i) Credit Agreement, dated as of August 31, 2000, as amended, by and among Pulte Homes, Inc., material subsidiaries of Pulte Homes, Inc. as guarantors, Bank of America, N.A., as administrative agent, Bank One, N.A., as syndication agent, Comerica Bank, as co-agent, Banc of America Securities LLC, as arranger, and the other lenders named therein, and (ii) Credit Agreement, dated July 31, 2001, by and among Pulte Homes, Inc., material subsidiaries of Pulte Homes, Inc., as guarantors, Citicorp Real Estate, Inc., as administrative agent and lender, Bank One, NA, as syndication agent, Bank of America, N.A., as documentation agent, and the other lenders named therein and, in each case, 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 3.02. Amendment to Definition of "Restricted Subsidiary" in the Original Indenture. The definition of "Restricted Subsidiary" in Section 101 of the Original Indenture is hereby amended and restated as follows: "Restricted Subsidiary" means any Guarantor and any other of our subsidiaries as of the date of the Indenture and any successor to such Guarantor or subsidiary other than (i) First Heights Bank, Pulte Financial Companies, Inc., PMC, Pulte Diversified Companies, Inc. or North American Builders Indemnity Corporation; (ii) Del Webb Mortgage Corporation and (iii) any successor to any of the subsidiaries described in clauses (i) and (ii). Section 3.03. The following companies are hereby added as guarantors of the Guaranteed Obligations under the Indenture: 7 9 DiVosta Building Corporation PH1 Corporation PH2 Corporation Pulte Communities NJ, Limited Partnership Pulte Homes of Michigan 1 L.P. Pulte Homes of NJ, Limited Partnership Pulte Homes of New York, Inc. Pulte Homes of PA, Limited Partnership Pulte Michigan Holdings Corporation Pulte Michigan Services, LLC 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. Registration Rights Agreement. Holders of the Notes shall be entitled to the rights and benefits under the Registration Rights Agreement. Section 4.03. Exchange Notes. Exchange Notes and Private Exchange Notes may from time to time be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Exchange Notes or Private Exchange Notes, as the case may be, upon cancellation of an equal amount of Notes tendered for exchange pursuant to the Exchange Offer (in a case of the Exchange Notes) or pursuant to the Registration Rights Agreement (in the case of the Private Exchange Notes), upon a Company Order without any further action by the Company. ARTICLE V SPECIAL TRANSFER PROVISIONS Section 5.01. Legend on Restricted Notes. (a) Each Note (including Global Notes) shall bear a Securities Act Legend until such time as such Note is exchanged for an Exchange Note (it being understood that the Exchange Notes shall not bear the Securities Act Legend) or sold pursuant to an effective Shelf Registration Statement pursuant to the Registration Rights Agreement; provided that upon the request made by the Holder of any Note bearing a Securities Act Legend from and after the Resale Restriction Termination Date with respect to such Note, the Company will execute and the Trustee will authenticate and deliver, in exchange for such Note, a new Note in like aggregate principal amount but not bearing the Securities Act Legend. (b) Each Note evidencing a Global Note offered and sold to QIBs pursuant to Rule 144A shall bear an additional legend in substantially the following form: 8 10 EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. Each Certificated Note shall bear the following additional legend: IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS. (c) Upon any sale or transfer of a Restricted Note that is a Certificated Note, the Registrar shall permit the Holder thereof to exchange such Restricted Note for a Certificated Note that does not bear the legends set forth above and rescind any restriction on the transfer of such Restricted Note if the Holder certifies in writing to the Registrar that its request for such exchange was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Note). (d) After a transfer of any Restricted Note (including a Private Exchange Note) during the period of the effectiveness of a Shelf Registration Statement with respect to such Restricted Note, all requirements pertaining to Securities Act Legend on such Restricted Notes shall cease to apply and the requirements that any Restricted Notes be issued in global form shall continue to apply. (e) Upon the consummation of an Exchange Offer with respect to any Restricted Notes pursuant to which Holders of such Restricted Notes are offered Exchange Notes in exchange for their Restricted Notes, all requirements pertaining to Restricted Notes that such Restricted Notes be issued in global form shall continue to apply, and Exchange Notes in global form without the Securities Act Legend shall be available to Holders that exchange such Restricted Notes in such Exchange Offer. (f) Upon the consummation of a private exchange with respect to any Restricted Notes pursuant to which Holders of such Restricted Notes are offered Private Exchange Notes in exchange for their Restricted Notes, all requirements pertaining to such Restricted Notes that such Restricted Notes be issued in global form shall continue to apply, and Private Exchange Notes in global form with the Securities Act Legend shall be available to Holders that exchange such Restricted Notes in such private exchange. Section 5.02. Transfer and Exchange. (a) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request: (i) to register the transfer of such Certificated Notes; or 9 11 (ii) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange: (A) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and (B) are accompanied by the following additional information and documents, as applicable: (x) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in the form set forth on the reverse side of the Note); or (y) if such Certificated Notes are being transferred to the Company, a certification to that effect (in the form set forth on the reverse side of the Note); or (C) if such Certificated Notes are being transferred pursuant to an exemption from registration in accordance with Rule 144 under the Notes Act or in reliance upon another exemption from the registration requirements of the Notes Act, (i) a certification to that effect (in the form set forth on the reverse side of the Note) and (ii) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 5.02(d)(i) of this Indenture Supplement. (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: (i) certification (in the form set forth on the reverse side of the Note) that such Certificated Note is being transferred (A) to a QIB in accordance with Rule 144A, or (B) to an Institutional Accredited Investor that has furnished to the Trustee a signed letter substantially in the form of Exhibit B; and (ii) 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 10 12 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 5.03 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 Supplemental Indenture (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. In the case of a transfer of a beneficial interest in a Global Note evidencing Notes held by QIBs for an interest in a Global Note evidencing Notes held by Institutional Accredited Investors, the transferee must furnish a signed letter substantially in the form of Exhibit B to the Trustee. (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 Supplemental Indenture (other than the provisions set forth in Section 5.03 of this Indenture Supplement), a Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. (iv) In the event that a Global Note is exchanged for Certificated Notes pursuant to Section 5.03 of this Indenture Supplement prior to the consummation of the Exchange Offer or the effectiveness of the Shelf Registration Statement with respect to such Notes, such Notes may be exchanged only in accordance with such procedures as 11 13 are substantially consistent with the provisions of this Section 5.02 (including the certification requirements set forth on the reverse of the Notes intended to ensure that such transfers comply with Rule 144A or such other applicable exemption from registration under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company. (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 and Exchanges 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 Supplemental Indenture 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. 12 14 (i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners. (ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture 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 Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Section 5.03. Certificated Notes. (a) A Global Note deposited with the Depositary or with the Trustee as Trustee pursuant to Section 2.04 of this Supplemental Indenture 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 and Section 5.02 of this Supplemental Indenture 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) the Company, in its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Certificated Notes under the Indenture, or (iii) upon the occurrence and continuation of an Event of Default. (b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 5.03 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 5.03 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. Any certificated Note in the form of a Certificated 13 15 Note delivered in exchange for an interest in the Global Note shall, except as otherwise provided by Section 2.04 of this Supplemental Indenture, bear the Securities Act Legend. (c) The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, 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 5.03(a)(i), (ii) or (iii) of this Supplemental Indenture, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes in fully registered form without interest coupons. Section 5.04. General. By its acceptance of any Note bearing the Securities Act Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in the Indenture and in such legend and agrees that it will transfer such Note only as provided in the Indenture. The Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to Section 5.03. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar. 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 provision 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 when so executed shall be deemed to be an original, and all of such counterparts shall together constitute one and the same instrument. Section 6.03. The 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. Section 6.04. Governing Law. This instrument shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of the State of New York. [SIGNATURE PAGE FOLLOWS] 14 16 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: /s/ John R. Stoller ----------------------------- Name: John R. Stoller Title: Senior Vice President Attest: By: /s/ Gregory M. Nelson -------------------------------- Name: Gregory M. Nelson Title: Asst. Secretary BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION [SEAL] By: ----------------------------- Name: Title: Attest: By: -------------------------------- Name: Title: 17 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: BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION [SEAL] By: /s/ Jeffery L. Eubank ----------------------------- Name: Jeffery L. Eubank Title: Authorized Signer Attest: By: /s/ John J. Rothrock -------------------------------- Name: John J. Rothrock Title: Authorized Signer 18 STATE OF MICHIGAN ) : ss.: COUNTY OF OAKLAND ) On the 6th of August 2001, before me personally came John R. Stoller, to me known, who, being by me duly sworn, did depose and say that he is Sr. Vice President 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. /s/ Nancy H. Gawthrop ---------------------------------- Notary Public My notary expires: 10/09/2003 STATE OF ILLINOIS ) : ss.: COUNTY OF COOK ) On the of 2001, before me personally came , to me known, who being by me duly sworn, did depose and say that he or she is of BANK ONE 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 19 STATE OF MICHIGAN ) : ss.: COUNTY OF ) On the of 2001, 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 OHIO ) : ss.: COUNTY OF FRANKLIN ) On the 6th of August, 2001, before me personally came Jeffery L. Eubank, to me known, who being by me duly sworn, did depose and say that he or she is Authorized Signer of BANK ONE 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. /s/ Donna J. Parisi ---------------------------------- Notary Public DONNA J. PARISI Notary Public In and for the State of Ohio My Commission Expires Feb. 28, 2005 My Commission is Recorded in Delaware County. 20 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.] [Unless and until a Note is exchanged for an Exchange Note or sold pursuant to an effective Registration Statement pursuant to the Registration Rights Agreement, the Global Notes and Certificated Notes shall bear a legend substantially to the effect set forth below in this paragraph (the "Securities Act Legend"), subject to removal of such legend as provided in Section 5.01 of the August 2001 Indenture Supplement referred to below: THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT), (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE ORIGINAL ISSUE DATE OF THE NOTES OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO PULTE HOMES, INC., (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG 21 AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES OF ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT PULTE HOMES, INC. AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.] A-2 22 PULTE HOMES, INC. _% SENIOR NOTES DUE 2011 $ CUSIP No. No. [For inclusion in Certificated Notes -- Principal Amount $ ] 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 [For inclusion in Certificated Notes -- of Dollars ($ )] [For inclusion in Global Notes -- indicated on Schedule A hereto] on , 2001 and to pay interest thereon from , 20 , or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on and in each year, commencing on , 200 , at the rate of % 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 [To be deleted from Exchange Notes--; provided that the interest rate on this Security shall be subject to increase under the circumstances provided below]. 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 or (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 A-3 23 Security Register or by wire transfer to an account maintained by the payee with a bank located in the United States. 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. [For inclusion in Global Notes -- 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 [For inclusion in Global Notes other than Exchange Notes -- $100,000 and integral multiples of $1,000 in excess thereof [For inclusion in global Exchange Notes -- $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.] [Delete for Exchange Notes - The Holder of this Security is entitled to the benefits of a Registration Rights Agreement (as such term is defined in the August 2001 Indenture Supplement referred to below). In the event that, (i) the Exchange Offer Registration Statement is not filed with the Commission on or prior to the 120th day following the Closing Date, or (ii) the Exchange Offer Registration Statement is not declared effective by the Commission on or prior to the 180th day following the Closing Date, or (iii) the Exchange Offer is not consummated on or prior to the 30th day following the effective date of the Exchange Offer Registration Statement, or (iv) if required pursuant to the Registration Rights Agreement, a Shelf Registration Statement is not filed with the Commission on or prior to (A) the 180th day following the Closing Date or (B) the 30th day after the filing obligation arises, whichever is later, or (v) if required, a Shelf Registration Statement is not declared effective on or prior to the 210th day following the Closing Date (or, if a Shelf Registration Statement is required to be filed upon the request of Initial Purchaser, within 30 days after such request), or A-4 24 (vi) a Shelf Registration Statement is declared effective by the Commission but such Shelf Registration Statement ceases to be effective or such Shelf Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Registrable Securities for any reason, except in accordance with Section 2(d)(iii) of the Registration Rights Agreement, or (vii) the Exchange Offer Registration Statement is declared effective by the Commission but, if the Exchange Offer Registration Statement is being used in connection with the resale of Exchange Notes as contemplated by Section 3(h)(B) of the Registration Rights Agreement, the Exchange Offer Registration Statement ceases to be effective or the Exchange Offer Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Exchange Securities for any reason during the 180-day period referred to in Section 3(h)(B) of the Registration Rights Agreement (as such period may be extended pursuant to the last paragraph of Section 3 of the Registration Rights Agreement) and either (A) the aggregate number of days in any consecutive 365-day period for which the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable exceeds 60 days, (B) the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Exchange Offer Registration Statement or the Prospectus shall not be effective or usable for a period of more than 30 consecutive days, (each of the events referred to in clauses (i) through (vii) above being hereinafter called a "Registration Default"), the per annum interest rate borne by this Security, so long as this Security is a Registrable Security, shall be increased ("Additional Interest") by one-quarter of one percent (0.25%) per annum immediately following such 120-day period in the case of clause (i) above, immediately following such [180-day period in the case of clause (ii) above, immediately following such 30-day period in the case of clause (iii) above, immediately following any such 180-day period or 30-day period, whichever ends later, in the case of clause (iv) above, immediately following any such 210-day period or 30-day period, whichever ends first, in the case of clause (v) above, immediately following the 30th consecutive day or the 60th consecutive day in any consecutive 365-day period, whichever occurs first, that a Shelf Registration Statement shall not be effective or a Shelf Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vi) above, or immediately following the 60th day in any consecutive 365-day period, as of the first day of the third period in any consecutive 365-day period or immediately following the 30th consecutive day, whichever occurs first, that the Exchange Offer Registration Statement shall not be effective or the Exchange Offer Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vii) above, which rate will be increased by an additional one-quarter of one percent (0.25%) per annum immediately following each 90-day period that any Additional Interest continues to accrue under any circumstances; provided that the aggregate increase in such annual interest rate may in no event exceed three quarters of one percent (0.75%) per annum. Upon the filing of the Exchange Offer Registration Statement after the 120-day period described in clause (i) above, the effectiveness of the Exchange Offer Registration Statement A-5 25 after the 180-day period described in clause (ii) above, the consummation of the Exchange Offer after the 30-day period described in clause (iii) above, the filing of the Shelf Registration Statement after the 180-day period or 30-day period day, as the case may be, described in clause (iv) above, the effectiveness of a Shelf Registration Statement after the 210-day period or 30-day period, as the case may be, described in clause (v) above, or the Shelf Registration Statement once again being effective or the Shelf Registration Statement and the Prospectus included therein becoming usable in connection with resales of Registrable Securities, as the case may be, in the case of clause (vi) above, or the Exchange Offer Registration Statement once again becoming effective or the Exchange Offer Registration Statement and the Prospectus included therein becoming usable in connection with resales of Exchange Securities, as the case may be, in the case of clause (vii) thereof, such Additional Interest shall cease to accrue on the Registrable Securities from the date of such filing, effectiveness, consummation or resumption of effectiveness or usability, as the case may be, so long as no other Registration Default shall have occurred and shall be continuing at such time and the Company is otherwise in compliance with this paragraph; provided, however, that, if after any such Additional Interest ceases to accrue, one or more Registration Defaults shall again occur, such Additional Interest shall again begin to accrue pursuant to the foregoing provisions. Anything herein to the contrary notwithstanding, any Holder who was, at the time the Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, its Securities for Exchange Notes in the Exchange Offer will not be entitled to receive any Additional Interest. For purposes of clarity, the Company hereby acknowledges and agrees that, under current interpretations of law by the Commission, Initial Purchaser holding unsold allotments of Securities acquired from the Company is not eligible to participate in the Exchange Offer.] 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 and the Indenture Supplement dated as of the date hereof (the "August 2001 Indenture Supplement (as so amended, the "Indenture")), each between the Company and Bank One 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 $300,000,000; provided that the aggregate principal amount of the Securities of this series which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the August 2001 Indenture Supplement. The Securities of this series are issuable only in registered form, without coupons, in the denominations specified in the August 2001 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 A-6 26 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 Treasury Rate (as hereinafter defined) plus ___ basis points ( %), 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) Salomon Smith Barney Inc. or one of the other initial purchasers (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 New York City (a "Primary Treasury Dealer"), we will A-7 27 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 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. A-8 28 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 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. A-9 29 Each Holder of a Note, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including, without limitation, the obligations of the Holders with respect to a registration and the indemnification of the Company to the extent provided therein. In the event of a conflict between the terms of this Note and the Registration Rights Agreement, the terms of the Registration Rights Agreement shall control. 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 August 2001 Indenture Supplement shall have the meanings assigned to them in the August 2001 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] A-10 30 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. BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION as Trustee By: ------------------------------------ Authorized Signature A-11 31 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. A-12 32 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. A-13 33 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: [LIST ALL GUARANTORS AND JURISDICTIONS OF INCORPORATION] Attest: By -------------------------------- -------------------------------------- A-14 34 [For inclusion in Restricted Notes] TRANSFER CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES Re: PULTE HOMES, INC. %Senior Notes due 2011 (the "Notes") Reference is hereby made to the Indenture dated as of October 24, 1995, as supplemented (the "Indenture"), between Bank One Trust Company, National Association, as trustee (the "Trustee"), and Pulte Homes, Inc. (the "Company"). Capitalized terms used but not defined in this Certificate shall have the meanings given to such terms in the Indenture. This Certificate relates to $______ principal amount of Notes (the "Specified Securities") held in (check applicable space) _____ book-entry or _____ definitive form by the undersigned (the "Transferor"). The Transferor (check one box below): has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global Security held by the Depositary a Note or Notes in definitive, registered form of authorized denominations in an aggregate principal amount equal to its beneficial interest in such Global Security (or the portion thereof indicated above); or has requested the Trustee by written order to exchange or register the transfer of a Note or Notes. In connection with any transfer of Specified Securities occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act of 1933, as amended (the "Securities Act"), the Transferor does hereby certify that such transfer is being made pursuant to an effective registration statement under the Securities Act of 1933 (as indicated by the applicable box checked below), or the transfer does not require registration under the Securities Act because (as indicated by the applicable box checked below): (a) The Specified Securities are being transferred pursuant to an effective registration statement under the Securities Act. (b) The Specified Securities are being acquired for the Transferor's own account, without transfer. (c) The Specified Securities are being transferred to the Company. (d) The Specified Securities are being transferred in compliance with Rule 144A ("Rule 144A") under the Securities Act to a person the Transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A) (a "QIB") A-15 35 that is purchasing the Specified Securities for its own account or for the account of another QIB, in each case to whom notice has been given that the transfer is being made in reliance on Rule 144A. (e) The Specified Securities are being transferred to an institutional "accredited investor" (as defined in Rule 501 (a)(1), (2), (3) or (7) under the Securities Act) (an "Institutional Accredited Investor") purchasing for its own account or for the account of one or more other Institutional Accredited Investors over which it exercises sole investment discretion and that, prior to such transfer, furnishes to the Trustee a signed letter containing certain representations and agreements relating to the restrictions on transfer of the Notes (the form of which letter can be obtained from the Trustee). (f) The Specified Securities are being transferred pursuant to another available exemption from the registration requirements of the Securities Act. Prior to the expiration of the period referred to in Rule 144(k), unless one of the boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (e) or (f) is checked, the Trustee may require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other information satisfactory to the Company and the Trustee to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. This Certificate and the statements contained herein are made for the benefit of the Trustee, the Company and the Initial Purchasers, in the initial offering of the Notes. ________________________________________ (Insert Name of Transferor) By: ____________________________________ Date:_____________________________ TO BE COMPLETED BY TRANSFEREE IF (d) ABOVE IS CHECKED: The undersigned transferee represents and warrants that (i) it is a QIB (as defined above) and is aware that the Specified Securities (as defined above) are being transferred in reliance on Rule 144A (as defined above), (ii) the undersigned is acquiring the Specified Securities for its own account or for the account of one or more other QlBs over which it exercises sole investment discretion (in which latter case the undersigned has given notice to each such account that the Specified Securities are being transferred in reliance on Rule 144A) and (iii) this instrument has been executed on behalf of the undersigned transferee by one of its executive A-16 36 officers. The undersigned transferee acknowledges and agrees that the Specified Securities have not been registered under the Securities Act (as defined above), and may not be transferred except in accordance with the resale and other transfer restrictions set forth in the legend on the face thereof. Dated:_____________________________ _______________________________________ (Insert Name of Transferee) By:____________________________________ Executive Officer A-17 37 [For inclusion in Global Notes] 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:

A-18 38 EXHIBIT B Form of Certificate to Be Delivered in Connection with Transfers of Restricted Notes to Non-QIB Accredited Investors ____________, ___ PULTE HOMES, INC. c/o Bank One Trust Company, National Association 1 North State Street, 9th Floor Chicago, Illinois 60602 Re: PULTE HOMES, INC. (the "Company") % Senior Notes due 20 (the "Notes") Dear Sirs: In connection with our proposed purchase of $_______ aggregate principal amount of the ___% Senior Notes due 20__ (the "Senior Notes") of PULTE HOMES, INC., a Michigan corporation ("PULTE"), we confirm that: 1. We are an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act")) purchasing for our own account or for the account of such an institutional "accredited investor," and we are acquiring the Senior Notes for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act or other applicable securities law and we have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Senior Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment. 2. We understand and acknowledge that the Senior Notes have not been registered under the Securities Act or any other applicable securities law and may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act or any other applicable securities law, or pursuant to an exemption therefrom, or in a transaction not subject thereto, and in each case in compliance with the conditions for transfer set forth below. We agree on our own behalf and on behalf of any investor account for which we are purchasing Senior Notes to offer, sell or otherwise transfer such Senior Notes prior to (x) the date which is two years (or such shorter period of time as permitted by Rule 144(k) under the Securities Act) after the date of original issue of the Senior Notes or (y) such later date, if any, as may be required by applicable law (the "Resale Restriction Termination Date") only (a) to PULTE, (b) pursuant to a registration statement which has been declared effective under the Securities Act, (c) for so long as the Senior Notes are eligible for resale pursuant to Rule 144A 39 under the Securities Act, to a person we reasonably believe is a "Qualified Institutional Buyer" within the meaning of Rule 144A (a "QIB") that purchases for its own account or for the account of a QIB, in each case to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) to an institutional "accredited investor" within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring the Senior Notes for its own account or for the account of such an institutional "accredited investor" for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act or (e) pursuant to any other available exemption from the registration requirements of the Securities Act, subject in each of the foregoing cases to any requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and to compliance with any applicable state or other securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Senior Notes is proposed to be made pursuant to clause (d) or (e) above prior to the Resale Restriction Termination Date, the transferor shall (i) deliver to the trustee under the Indenture pursuant to which the Senior Notes are issued (the "Trustee") a letter from the transferee substantially in the form of this letter, which shall provide, among other things, that the transferee is an institutional "accredited investor" as defined in paragraph 1 of this letter and that it is acquiring such Senior Notes for investment purposes and not for distribution in violation of the Securities Act. We acknowledge that PULTE and the Trustee reserve the right prior to any offer, sale or other transfer of the Senior Notes pursuant to clauses (d) or (e) above prior to the Resale Restriction Termination Date to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to PULTE and the Trustee. 3. We are acquiring the Senior Notes purchased by us for our own account or for one or more accounts as to each of which we exercise sole investment discretion. 4. We confirm that neither PULTE nor any person acting on its behalf has offered to sell the Senior Notes by, and that we have not been made aware of the offering of the Senior Notes by, any form of general solicitation or general advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio. 5. You and the initial purchasers of the Senior Notes, as applicable, are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. B-2 40 Very truly yours, -------------------------------- [PURCHASER] By: ----------------------------- (Authorized Officer) Upon transfer, the Senior Notes would be registered in the name of the new owner as follows: NAME ADDRESS TAXPAYER ID NUMBER ---------- ------------- ------------------------ B-3 EX-4.13 5 k64962ex4-13.txt INDENTURE SUPPLEMENT DATED JULY 31, 2001 1 EXHIBIT 4.13 ----------------------------------------------------------------------- PULTE CORPORATION ------------------------- INDENTURE SUPPLEMENT DATED AS OF JULY 31, 2001 ------------------------- THE BANK OF NEW YORK (successor-in-interest to NationsBank of Georgia, National Association) TRUSTEE ----------------------------------------------------------------------- SENIOR DEBT SECURITIES 2 INDENTURE SUPPLEMENT dated as of July 31, 2001, among PULTE HOMES, INC. (formerly known as PULTE CORPORATION), a Michigan corporation (the "Company"), located at 33 Bloomfield Hills Parkway, Suite 200, Bloomfield Hills, Michigan 48304, THE BANK OF NEW YORK (successor-in-interest to NationsBank of Georgia, National Association) (the "Trustee"), PULTE HOME CORPORATION ("Pulte Home"), the wholly-owned subsidiaries of Pulte Home set forth on the attached Exhibit A (Pulte Home and such subsidiaries, all together the "Existing Guarantors"), Del Webb Corporation ("Del Webb") and the wholly-owned subsidiaries of Del Webb set forth on the attached Exhibit B (Del Webb and such subsidiaries, all together the "New Guarantors") (the Existing Guarantors and the New Guarantors are referred to in the Indenture, as amended by this Indenture Supplement and as may be further amended, collectively as the "Guarantors" and individually as a "Guarantor") The Company, the Trustee and the Existing Guarantors have entered into an Indenture dated as of December 1, 1993, as amended by the Indenture Supplement dated as of August 27, 1997, the Indenture Supplement dated as of March 20, 1998 and the Indenture Supplement dated as of January 31, 1999 (the "Indenture"), pursuant to which the Trustee acts as trustee for the holders of the Company's 7% Senior Notes due 2003, and the Company's 8.375% Senior Notes due 2004. Capitalized terms used in this Indenture Supplement and not otherwise defined herein shall have the meanings set forth in the Indenture. The parties desire to add the following companies as guarantors of the Guaranteed Obligations under the Indenture: Anthem Arizona L.L.C. Asset Five Corp. Asset Seven Corp. Bellasera Corp. Del Webb California Corp. Del Webb Communities, Inc. 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. 2 3 Del Webb's Spruce Creek Communities, Inc. Del Webb's Sunflower of Tucson, Inc. Del E. Webb Development Co., L.P. Del E. Webb Foothills Corporation Mountain View Two, LLC New Mexico Asset Corporation New Mexico Asset Limited Partnership PH 1 Acquisition Corporation PH 2 Acquisition Corporation Spruce Creek South Utilities, Inc. Terravita Corp. Terravita Home Construction Co. Section 901 of the Indenture permits the Company and the Trustee to execute supplements to the Indenture for the purpose of adding guarantors of the Guaranteed Obligations without the consent of any Holders. 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 Securities or of any series thereof, as follows: 1. The following companies are hereby added as guarantors of the Guaranteed Obligations under the Indenture: Anthem Arizona L.L.C. Asset Five Corp. Asset Seven Corp. Bellasera Corp. Del Webb California Corp. Del Webb Communities, Inc. Del Webb Corporation Del Webb Golf Corp. Del Webb Home Construction, Inc. 3 4 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. Del E. Webb Development Co., L.P. Del E. Webb Foothills Corporation Mountain View Two, LLC New Mexico Asset Corporation New Mexico Asset Limited Partnership PH 1 Acquisition Corporation PH 2 Acquisition Corporation Spruce Creek South Utilities, Inc. Terravita Corp. Terravita Home Construction Co. 2. The Indenture, as supplemented by and together with this Indenture Supplement, shall be read, taken and construed as one and the same instrument. 3. 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. 4. 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. [signatures appear on pages following] 4 5 IN WITNESS WHEREOF, the parties hereto have caused this Indenture Supplement to be duly executed as of the day and year first above written. THE BANK OF NEW YORK as Trustee By: ---------------------------------------- Name: Title: PULTE CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President, General Counsel and Secretary PULTE HOME CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President AMERICAN TITLE OF THE PALM BEACHES, LTD. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary CARR'S GRANT, L.L.C. Attest By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary

5 6 DEVTEX LAND, L.P. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary HARRISON HILLS, LLC Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary HOMESITE SOLUTIONS CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary ONE WILLOWBROOK, L.L.C. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PC/BRE DEVELOPMENT L.L.C. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary

6 7 PC/BRE SPRINGFIELD L.L.C. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PC/BRE VENTURE L.L.C. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PC/BRE WHITNEY OAKS L.L.C. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PC/BRE WINFIELD L.L.C. Attest: By: ----------------------------------- --------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PC/PALM BEACH, INC. Attest: By: ----------------------------------- --------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary

7 8 PN I, INC. Attest: By: ----------------------------------- --------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PULTE HOME CORPORATION OF NEW ENGLAND Attest: By: ----------------------------------- --------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PULTE HOMES OF TEXAS, L. P. Attest: By: ----------------------------------- --------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PULTE HOMES TENNESSEE LIMITED PARTNERSHIP Attest: By: ----------------------------------- --------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary PULTE LAND COMPANY, LLC Attest: By: ----------------------------------- --------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary

8 9 RIVERWALK COMMERCE ACQUISITION CORP. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary WILBEN, LLLP Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Vice President, General Counsel and Secretary DEL WEBB CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary ANTHEM ARIZONA L.L.C. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary ASSET FIVE CORP. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary

9 10 ASSET SEVEN CORP. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary BELLASERA CORP. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB CALIFORNIA CORP. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB COMMUNITIES, INC. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB GOLF CORP. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary

10 11 DEL WEBB HOME CONSTRUCTION, INC. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB LIMITED HOLDING CO. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB SOUTHWEST CO. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB TEXAS LIMITED PARTNERSHIP Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB'S COVENTRY HOMES CONSTRUCTION CO. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary

11 12 DEL WEBB'S COVENTRY HOMES, INC. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB'S COVENTRY HOMES OF NEVADA, INC. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB'S SPRUCE CREEK COMMUNITIES, INC. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL WEBB'S SUNFLOWER OF TUCSON, INC. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary DEL E. WEBB DEVELOPMENT CO., L.P. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary

12 13 DEL E. WEBB FOOTHILLS CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary MOUNTAIN VIEW TWO, LLC Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary NEW MEXICO ASSET CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary NEW MEXICO ASSET LIMITED PARTNERSHIP Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary PH 1 ACQUISITION CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary

13 14 PH 2 ACQUISITION CORPORATION Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary SPRUCE CREEK SOUTH UTILITIES, INC Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary TERRAVITA CORP. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary TERRAVITA HOME CONSTRUCTION CO. Attest: By: ------------------------------------ ---------------------------------------- Calvin R. Boyd John R. Stoller, Senior Vice President General Counsel and Secretary

14 15 EXHIBIT A: EXISTING GUARANTORS American Title of the Palm Beaches Acquisition Corp. Carr's Grant, L.L.C. Devtex Land, L.P. Harrison Hills, LLC Homesite Solutions Corporation One Willowbrook, L.L.C. PC/BRE Development L.L.C. PC/BRE Springfield L.L.C. PC/BRE Venture L.L.C. PC/BRE Whitney Oaks L.L.C. PC/BRE Winfield L.L.C. PC/Palm Beach, Inc. PN I, Inc. Pulte Home Corporation of New England Pulte Homes of Texas, L.P. Pulte Homes Tennessee Limited Partnership Pulte Land Company, LLC Riverwalk Commerce Acquisition Corp. Wilben, LLLP 15 16 EXHIBIT B: NEW GUARANTORS Anthem Arizona L.L.C. Asset Five Corp. Asset Seven Corp. Bellasera Corp. Del Webb California Corp. Del Webb Communities, Inc. 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. Del E. Webb Development Co., L.P. Del E. Webb Foothills Corporation Mountain View Two, LLC New Mexico Asset Corporation New Mexico Asset Limited Partnership PH 1 Acquisition Corporation PH 2 Acquisition Corporation Spruce Creek South Utilities, Inc. Terravita Corp. Terravita Home Construction Co. 16 EX-4.18 6 k64962ex4-18.txt CREDIT AGREEMENT DATED AS OF AUGUST 31, 2000 1 EXHIBIT 4.18 CREDIT AGREEMENT among PULTE CORPORATION as Borrower, THE MATERIAL SUBSIDIARIES OF PULTE CORPORATION as Guarantors, THE LENDERS IDENTIFIED HEREIN, BANK OF AMERICA, N.A., as Administrative Agent, BANK ONE, NA, as Syndication Agent, and COMERICA BANK, as Co-Agent DATED AS OF AUGUST 31, 2000 BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger and Sole Book Manager, 2 TABLE OF CONTENTS SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.......................................................................1 1.1 DEFINITIONS..............................................................................................1 1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS...........................................20 1.3 ACCOUNTING TERMS........................................................................................20 1.4 TIME....................................................................................................21 SECTION 2 CREDIT FACILITIES.....................................................................................21 2.1 REVOLVING LOANS.........................................................................................21 2.2 SWINGLINE LOANS SUBFACILITY.............................................................................24 2.3 CONTINUATIONS AND CONVERSIONS...........................................................................26 2.4 MINIMUM AMOUNTS.........................................................................................26 2.5 EXTENSION OF MATURITY DATE..............................................................................27 SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS................................................................28 3.1 INTEREST................................................................................................28 3.2 PLACE AND MANNER OF PAYMENTS............................................................................29 3.3 PREPAYMENTS.............................................................................................29 3.4 FEES....................................................................................................30 3.5 PAYMENT IN FULL AT MATURITY.............................................................................31 3.6 COMPUTATIONS OF INTEREST AND FEES.......................................................................31 3.7 PRO RATA TREATMENT......................................................................................32 3.8 SHARING OF PAYMENTS.....................................................................................33 3.9 CAPITAL ADEQUACY........................................................................................33 3.10 INABILITY TO DETERMINE INTEREST RATE....................................................................34 3.11 ILLEGALITY..............................................................................................34 3.12 REQUIREMENTS OF LAW.....................................................................................35 3.13 TAXES...................................................................................................36 3.14 COMPENSATION............................................................................................38 3.15 SUBSTITUTION OF LENDER..................................................................................39 3.16 EVIDENCE OF DEBT........................................................................................39 SECTION 4 GUARANTY..............................................................................................40 4.1 GUARANTY OF PAYMENT.....................................................................................40 4.2 OBLIGATIONS UNCONDITIONAL...............................................................................40 4.3 MODIFICATIONS...........................................................................................41 4.4 WAIVER OF RIGHTS........................................................................................41 4.5 REINSTATEMENT...........................................................................................41 4.6 REMEDIES................................................................................................42 4.7 LIMITATION OF GUARANTY..................................................................................42 4.8 RIGHTS OF CONTRIBUTION..................................................................................42 SECTION 5 CONDITIONS PRECEDENT..................................................................................43 5.1 CLOSING CONDITIONS......................................................................................43 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT..................................................................47 SECTION 6 REPRESENTATIONS AND WARRANTIES........................................................................47 6.1 FINANCIAL CONDITION.....................................................................................47 6.2 NO MATERIAL CHANGE......................................................................................48 6.3 ORGANIZATION AND GOOD STANDING..........................................................................48 6.4 DUE AUTHORIZATION.......................................................................................48 6.5 NO CONFLICTS............................................................................................48

3 6.6 CONSENTS................................................................................................49 6.7 ENFORCEABLE OBLIGATIONS.................................................................................49 6.8 NO DEFAULT..............................................................................................49 6.9 LIENS...................................................................................................49 6.10 INDEBTEDNESS............................................................................................49 6.11 LITIGATION..............................................................................................50 6.12 TAXES...................................................................................................50 6.13 COMPLIANCE WITH LAW.....................................................................................50 6.14 ERISA...................................................................................................50 6.15 SUBSIDIARIES............................................................................................51 6.16 USE OF PROCEEDS.........................................................................................51 6.17 GOVERNMENT REGULATION...................................................................................52 6.18 ENVIRONMENTAL MATTERS...................................................................................52 6.19 INTELLECTUAL PROPERTY...................................................................................53 6.20 SOLVENCY................................................................................................54 6.21 INVESTMENTS.............................................................................................54 6.22 DISCLOSURE..............................................................................................54 6.23 LICENSES, ETC...........................................................................................54 6.24 BURDENSOME RESTRICTIONS.................................................................................54 6.25 LABOR CONTRACTS AND DISPUTES............................................................................54 6.26 BROKER'S FEES...........................................................................................55 SECTION 7 AFFIRMATIVE COVENANTS.................................................................................55 7.1 INFORMATION COVENANTS...................................................................................55 7.2 FINANCIAL COVENANTS.....................................................................................58 7.3 PRESERVATION OF EXISTENCE AND FRANCHISES................................................................59 7.4 BOOKS AND RECORDS.......................................................................................59 7.5 COMPLIANCE WITH LAW.....................................................................................59 7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.................................................................59 7.7 INSURANCE...............................................................................................59 7.8 MAINTENANCE OF PROPERTY.................................................................................60 7.9 PERFORMANCE OF OBLIGATIONS..............................................................................60 7.10 USE OF PROCEEDS.........................................................................................60 7.11 AUDITS/INSPECTIONS......................................................................................60 7.12 ADDITIONAL CREDIT PARTIES...............................................................................60 SECTION 8 NEGATIVE COVENANTS....................................................................................61 8.1 INDEBTEDNESS............................................................................................61 8.2 LIENS...................................................................................................62 8.3 NATURE OF BUSINESS......................................................................................62 8.4 CONSOLIDATION AND MERGER................................................................................62 8.5 SALE OR LEASE OF ASSETS.................................................................................62 8.6 SALE AND LEASEBACK......................................................................................63 8.7 ADVANCES, INVESTMENTS AND LOANS.........................................................................64 8.8 RESTRICTED PAYMENTS.....................................................................................64 8.9 TRANSACTIONS WITH AFFILIATES............................................................................64 8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS...................................................................64 8.11 NO LIMITATIONS..........................................................................................64 8.12 NO OTHER NEGATIVE PLEDGES...............................................................................64 8.13 OTHER INDEBTEDNESS......................................................................................65 SECTION 9 EVENTS OF DEFAULT.....................................................................................65 9.1 EVENTS OF DEFAULT.......................................................................................65 9.2 ACCELERATION; REMEDIES..................................................................................68 9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT...........................................................69

4 SECTION 10 AGENCY PROVISIONS....................................................................................69 10.1 APPOINTMENT..........................................................................................69 10.2 DELEGATION OF DUTIES.................................................................................70 10.3 EXCULPATORY PROVISIONS...............................................................................70 10.4 RELIANCE ON COMMUNICATIONS...........................................................................71 10.5 NOTICE OF DEFAULT....................................................................................71 10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS...............................................71 10.7 INDEMNIFICATION......................................................................................72 10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY......................................................72 10.9 SUCCESSOR ADMINISTRATIVE AGENT.......................................................................73 SECTION 11 MISCELLANEOUS........................................................................................73 11.1 NOTICES..............................................................................................73 11.2 RIGHT OF SET-OFF.....................................................................................73 11.3 BENEFIT OF AGREEMENT.................................................................................74 11.4 NO WAIVER; REMEDIES CUMULATIVE.......................................................................77 11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.................................................................77 11.6 AMENDMENTS, WAIVERS AND CONSENTS.....................................................................78 11.7 COUNTERPARTS/TELECOPY................................................................................79 11.8 HEADINGS.............................................................................................79 11.9 DEFAULTING LENDER....................................................................................79 11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.......................................79 11.11 GOVERNING LAW; JURISDICTION..........................................................................79 11.12 WAIVER OF JURY TRIAL.................................................................................80 11.13 SEVERABILITY.........................................................................................80 11.14 FURTHER ASSURANCES...................................................................................80 11.15 ENTIRETY.............................................................................................81 11.16 BINDING EFFECT; CONTINUING AGREEMENT.................................................................81

5 SCHEDULES Schedule 1.1(a) Revolving Loan Commitment Percentages Schedule 1.1(b) Permitted Liens Schedule 6.10 Indebtedness Schedule 6.11 Litigation Schedule 6.15 Subsidiaries Schedule 6.21(a) Investment Policy Schedule 6.21(b) Investments Schedule 6.25 Labor Contract and Disputes Schedule 11.1 Notices EXHIBITS Exhibit 2.1(b) Form of Notice of Borrowing Exhibit 2.1(f) Form of Revolving Note Exhibit 2.2(b) Form of Swingline Loan Request Exhibit 2.2(e) Form of Swingline Note Exhibit 2.3 Form of Notice of Continuation/Conversion Exhibit 7.1(c) Form of Officer's Certificate Exhibit 7.12 Form of Joinder Agreement Exhibit 11.3(b) Form of Assignment Agreement 6 CREDIT AGREEMENT THIS CREDIT AGREEMENT (this "Credit Agreement") is entered into as of August 31, 2000 among PULTE CORPORATION, a Michigan corporation (the "Borrower"), each of the Material Subsidiaries of the Borrower (individually a "Guarantor" and collectively the "Guarantors"), the Lenders (as defined herein), BANK OF AMERICA, N.A., as Administrative Agent for the Lenders, BANK ONE, NA, as Syndication Agent for the Lenders and COMERICA BANK, as Co-Agent for the Lenders. RECITALS WHEREAS, the Borrower and the Guarantors have requested the Lenders to provide a senior revolving credit facility in an aggregate principal amount of up to $375 million, which may be increased in accordance with the terms hereof to up to $600 million; and WHEREAS, the Lenders party hereto have agreed to make the requested senior revolving credit facility available to the Borrower on the terms and conditions hereinafter set forth. NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: SECTION 1 DEFINITIONS AND ACCOUNTING TERMS 1.1 DEFINITIONS. As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires. Defined terms herein shall include in the singular number the plural and in the plural the singular: "Acquisition", by any Person, means the acquisition by such Person of the Capital Stock or all or substantially all of the assets of another Person, whether or not involving a merger or consolidation with such Person. "Additional Credit Party" means each Person that becomes a Guarantor after the Closing Date, as provided in Section 7.12 or otherwise. "Adjusted Eurodollar Rate" means the Eurodollar Rate plus the Applicable Percentage. 7 "Adjusted LIBOR Market Index Rate" means the LIBOR Market Index Rate plus the Applicable Percentage. "Administrative Agent" means Bank of America, N.A. (or any successor thereto) or any successor administrative agent appointed pursuant to Section 10.9. "Administrative Fees" has the meaning set forth in Section 3.4(c). "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling (including but not limited to all directors and officers (or the equivalent) of such Person), controlled by or under direct or indirect common control with such Person. A Person shall be deemed to control an entity if such Person possesses, directly or indirectly, the power (a) to vote 10% or more of the ordinary voting power for the election of directors (or the equivalent) of such entity or (b) to direct or cause direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise. "Agency Services Address" means Bank of America, N.A., 231 South LaSalle Street, Chicago, IL 60697, or such other address as may be identified by written notice from the Administrative Agent to the Borrower. "Applicable Percentage" means, for Eurodollar Loans, Index Rate Swingline Loans and Facility Fees, the appropriate applicable percentages corresponding to the Debt to Capitalization Ratio and the long term unsecured debt rating of the Borrower as described below:
Applicable Long Term Unsecured Percentage for Applicable Debt to Debt Rating Eurodollar Loans and Percentage Pricing Capitalization of Index Rate Swingline for Level Ratio Borrower Loans Facility Fees ----- ----- -------- ----- ------------- I greater or equal 20% equal or greater BBB+/Baa1 .475% .150% ----------------------- ----------------------- -------------------------- ---------------------- --------------------- II greater 20% but less=35% BBB/Baa2 .700% .175% ----------------------- ----------------------- -------------------------- ---------------------- --------------------- III greater 35% but less=45% BBB-/Baa3 .825% .225% ----------------------- ----------------------- -------------------------- ---------------------- --------------------- IV greater 45% less BBB-/Baa3 1.100% .275% or not rated by S&P and Moody's ----------------------- ----------------------- -------------------------- ---------------------- ---------------------
In the event the Debt to Capitalization Ratio and the long term unsecured debt rating of the Borrower are not at the same level, the applicable Pricing Level shall be the lowest applicable level (i.e. the lowest pricing for the Borrower); provided, however, that if the Debt to Capitalization Ratio corresponds to a level more than one level lower than the long term debt rating of the Borrower, then the applicable Pricing Level shall be one level lower than the Pricing Level determined by the long term unsecured debt rating of the Borrower. In the event of a split in ratings between Moody's and S&P, the long term unsecured debt rating of the Borrower shall be the highest rating; provided, however, that if there is a split 2 8 in ratings between Moody's and S&P of more than one level, the long term unsecured debt rating of the Borrower shall be one level lower than the highest rating. The Applicable Percentage shall be determined and adjusted, as necessary, on the date of any change in the long term unsecured debt rating of the Borrower or upon receipt of the officer's certificate required by Section 7.1(c) calculating the then Debt to Capitalization Ratio. "Assignment Agreement" has the meaning set forth in Section 11.3(b). "Authorized Officer" means, with respect to any certificate required to be delivered pursuant to this Credit Agreement, the chief financial officer, treasurer or corporate controller of the Borrower or any other person designated in writing by such chief financial officer, treasurer or corporate controller. "BAS" means Banc of America Securities LLC, in its capacity as Sole Lead Arranger and Sole Book Manager, and its successors and assigns. "Bank of America" means Bank of America, N.A. and its successors and assigns. "Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time. "Base Rate" means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable after due inquiry to ascertain the Federal Funds Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms hereof, the Base Rate shall be determined without regard to clause (a) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively. "Base Rate Loan" means any Loan bearing interest at a rate determined by reference to the Base Rate. "Borrower" means Pulte Corporation, a Michigan corporation, together with any successors and permitted assigns. "Business Day" means any day other than a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or other governmental action to close in Chicago, Illinois; provided that in the case of Eurodollar Loans, such day is also a day on which dealings between banks are carried on in Dollar deposits in the London interbank market. 3 9 "Capital Expenditures" means all expenditures of the Credit Parties and their Subsidiaries which, in accordance with GAAP, would be classified as capital expenditures, including, without limitation, Capital Leases. "Capital Lease" means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person and the amount of such obligation shall be the capitalized amount thereof determined in accordance with GAAP. "Capital Stock" means (a) in the case of a corporation, all classes of capital stock of such corporation, (b) in the case of a partnership, partnership interests (whether general or limited), (c) in the case of a limited liability company, membership interests and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Capitalization" means (a) Funded Debt plus (b) the consolidated net shareholders equity of the Borrower as determined in accordance with GAAP. "Cash Equivalents" means (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than 180 days from the date of acquisition, (b) Dollar denominated time and demand deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof or from Moody's is at least P-2 or the equivalent thereof (any such bank being an "Approved Bank"), in each case with maturities of not more than 180 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody's and maturing within 180 days of the date of acquisition, (d) repurchase agreements with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of America in which the Borrower shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d), and (f) Investments consistent with the Pulte Corporation Investment Policy as set forth on Schedule 6.21(a). 4 10 "Change of Control" means the occurrence of any of the following events: (a) there shall be consummated any consolidation, share exchange or merger of the Borrower in which the Borrower is not the continuing or surviving corporation or pursuant to which the Borrower's Voting Stock would be converted into cash, securities or other property, other than, in any case, a merger of the Borrower in which the holders of Voting Stock immediately prior to the merger have the same or greater proportionate ownership, directly or indirectly, of the Voting Stock of the surviving corporation immediately after the merger as they had of the Voting Stock of the Borrower immediately before the merger; (b) there is a report filed by any Person, including Affiliates of the Borrower (other than the Borrower, its Material Subsidiaries, employee stock ownership plans or employee benefit plans of the Borrower or its subsidiaries, or a Permitted Holder) on Schedule 13D or 14D-1 (or any successor schedule, form or report under the Exchange Act) disclosing that such Person (for the purpose of this definition of "Change in Control" only, the term "Person" shall include a "person" within the meaning of Section 13(d)(3) and Section 14(d)(2) of the Exchange Act or any successor provision to either of the foregoing) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3, Rule 13d-5 or any successor rule or regulation promulgated under the Exchange Act) of 30% or more of the Borrower's Voting Stock; provided, however, that a Person shall not be deemed the beneficial owner of, or to own beneficially (i) any securities tendered pursuant to a tender or exchange offer made on behalf of such Person or any of such Person's Affiliates until such tendered securities are accepted for purchase or exchange thereunder or (ii) any securities if such beneficial ownership (A) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations under the Exchange Act, and (B) is not also then reportable on Schedule 13D (or any successor schedule, form or report) under the Exchange Act; or (c) during any period of two consecutive calendar years, individuals who, at the beginning of such period constituted the board of directors of the Borrower cease for any reason to constitute a majority of the directors of the Borrower then in office unless such new directors were elected by the directors of the Borrower who constituted the board of directors of the Borrower at the beginning of such period. "Closing Date" means the date hereof. "Co-Agent" means Comerica Bank (or any successor thereto). "Code" means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder, as amended, modified, succeeded or replaced from time to time. References to sections of the Code should be construed also to refer to any successor sections. "Commitments" means (a) with respect to each Lender, the Revolving Loan Commitment of such Lender and (b) with respect to Bank of America, the Swingline Loan Commitment. 5 11 "Consolidated Net Tangible Assets" means, as of any date of determination, the sum of (a) Tangible Net Worth and (b) Funded Debt. "Credit Documents" means this Credit Agreement, the Notes, any Joinder Agreement and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto. "Credit Parties" means the Borrower and the Guarantors and "Credit Party" means any one of them. "Credit Party Obligations" means, without duplication, all of the obligations of the Credit Parties to the Lenders and the Administrative Agent, whenever arising, under this Credit Agreement, the Notes or any other Credit Document to which any Credit Party is a party. "Debt to Capitalization Ratio" means, as of any date, the ratio of (a) Funded Debt less (i) Subordinated Debt issued by the Credit Parties which matures on or after the Maturity Date in an aggregate amount not to exceed $100 million and (ii) all cash and Cash Equivalents held by the Credit Parties in excess of $25,000,000 to (b) Capitalization. "Default" means any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default. "Defaulting Lender" means, at any time, any Lender that (a) has failed to make a Loan or purchase a Participation Interest required pursuant to the terms of this Credit Agreement (but only for so long as such Loan is not made or such Participation Interest is not purchased), (b) has failed to pay to the Administrative Agent or any other Lender an amount owed by such Lender pursuant to the terms of this Credit Agreement (but only for so long as such amount has not been paid) or (c) has been deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or with respect to which (or with respect to any assets of which) a receiver, trustee or similar official has been appointed. "Dollars" and "$" mean dollars in lawful currency of the United States of America. "Domestic Subsidiaries" means all direct and indirect Subsidiaries of a Credit Party that are domiciled, incorporated or organized under the laws of any state of the United States or the District of Columbia (or has any material assets located in the United States). "EBITDA" means, for any period, with respect to the Borrower, the sum of (a) Net Income for such period (excluding the effect of any extraordinary or other non-recurring gains or losses outside of the ordinary course of business) plus (b) an amount which, in the determination of Net Income for such period has been deducted for (i) interest expense (including previously capitalized interest included in the cost of goods sold) of the Credit Parties and their Subsidiaries for such period, (ii) total Federal, state, foreign or other 6 12 income taxes of the Borrower for such period and (iii) depreciation and amortization of the Credit Parties and their Subsidiaries for such period, all as determined in accordance with GAAP. "Effective Date" means the date on which the conditions set forth in Section 5.1 shall have been fulfilled (or waived in the sole discretion of the Lenders). "Eligible Assignee" means (a) any Lender; (b) an Affiliate of a Lender; and (c) any other Person approved by the Administrative Agent and the Borrower (such approval not to be unreasonably withheld or delayed); provided that (i) the Borrower's consent is not required during the existence and continuation of an Event of Default, (ii) approval by the Borrower shall be deemed given if no objection is received by the assigning Lender and the Administrative Agent from the Borrower within two Business Days after notice of such proposed assignment has been received by the Borrower; and (iii) neither the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee. "Environmental Claim" means any investigation, written notice, violation, written demand, written allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding, or written claim whether administrative, judicial, or private in nature arising (a) pursuant to, or in connection with, an actual or alleged violation of, any Environmental Law, (b) in connection with any Hazardous Material, (c) from any assessment, abatement, removal, remedial, corrective, or other response action in connection with an Environmental Law or other order of a Governmental Authority or (d) from any actual or alleged damage, injury, threat, or harm to health, safety, natural resources, or the environment. "Environmental Laws" means any current or future legal requirement of any Governmental Authority pertaining to (a) the protection of health, safety, and the indoor or outdoor environment, (b) the conservation, management, or use of natural resources and wildlife, (c) the protection or use of surface water and groundwater or (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material or (e) pollution (including any release to land, surface water and groundwater) and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 7 13 USC 300(f) et seq., any analogous implementing or successor law, and any amendment, rule, regulation, order, or directive issued thereunder. "Equity Issuance" means any issuance by a Credit Party to any Person of (a) shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of options or warrants or (c) any shares of its Capital Stock pursuant to the conversion of any debt securities to equity. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections. "ERISA Affiliate" means an entity, whether or not incorporated, which is under common control with any Credit Party or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes any Credit Party or any of its Subsidiaries and which is treated as a single employer under Sections 414(b), (c), (m), or (o) of the Code. "Eurodollar Loan" means a Loan bearing interest based on a rate determined by reference to the Eurodollar Rate. "Eurodollar Rate" means, for the Interest Period for each Eurodollar Loan comprising part of the same borrowing (including conversions, extensions and renewals), a per annum interest rate determined pursuant to the following formula: Eurodollar Rate = London Interbank Offered Rate --------------------------------- 1 - Eurodollar Reserve Percentage "Eurodollar Reserve Percentage" means for any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as such regulation may be amended from time to time or any successor regulation, as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to Eurocurrency liabilities as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate of Eurodollar Loans is determined), whether or not a Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to a Lender. The Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage. 8 14 "Event of Default" means any of the events or circumstances specified in Section 9.1. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as amended, modified, succeeded or replaced from time to time. "Existing Credit Agreements" means (a) that certain Credit Agreement, dated as of January 5, 1995, by and among the Borrower, certain guarantors (as defined therein), Bank of America, N.A., formerly NationsBank, N.A., as agent, Comerica Bank and Bank One, NA, formerly The First National Bank of Chicago, as co-agents and the lenders party thereto, as the same has been and may be amended, restated or otherwise modified from time to time and (b) that certain Credit Agreement, dated as of September 15, 1999, by and among the Borrower, certain guarantors (as defined therein), Bank of America, N.A., as administrative agent, Bank One, NA, as syndication agent, Guaranty Federal Bank, F.S.B., as co-agent and the lenders party thereto, as the same has been and may be amended, restated or otherwise modified from time to time. "Extending Lender" has the meaning set forth in Section 2.5(a). "Extension of Credit" means, as to any Lender, the making of a Loan by such Lender (or a participation therein by a Lender). "Extension Required Lenders" has the meaning set forth in Section 2.5(a). "Facility Fees" means the fees payable to the Lenders pursuant to Section 3.4(a). "Federal Funds Rate" means for any day the rate of interest per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day and (b) if no such rate is so published on such next preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Administrative Agent on such day on such transactions as determined by the Administrative Agent. "Fee Letter" means that certain letter agreement dated as of July 17, 2000 among the Borrower, BAS and the Administrative Agent. "Funded Debt" means, without duplication, the sum of all Indebtedness of the Credit Parties for borrowed money, including, without limitation, (a) all purchase money Indebtedness of the Credit Parties, (b) the principal portion of all obligations of the Credit Parties under Capital Leases, (c) all Guaranty Obligations of the Credit Parties with respect 9 15 to Indebtedness of another Person, (d) all Indebtedness of another entity secured by a Lien on any property of the Credit Parties whether or not such Indebtedness has been assumed by a Credit Party, and (e) all Indebtedness of any partnership or unincorporated joint venture to the extent a Credit Party is legally obligated or has a reasonable expectation of being liable with respect thereto, net of any assets of such partnership or joint venture. "GAAP" means generally accepted accounting principles in the United States applied on a consistent basis and subject to Section 1.3. "Governmental Authority" means any Federal, state, local, provincial or foreign court or governmental agency, authority, instrumentality or regulatory body. "Guarantor" means each of the Material Subsidiaries of the Borrower and each Additional Credit Party which has executed a Joinder Agreement or otherwise become a Guarantor hereunder, together with their successors and assigns. "Guaranty Obligations" means, with respect to any Person, without duplication, any obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intending to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or other obligation or any property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of such Indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person, (c) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness against loss in respect thereof or (d) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in respect thereof; provided, that a guaranty of Non-Recourse Land Financing shall not be deemed to be a Guaranty Obligation until, and only to the extent that, such Non-Recourse Land Financing ceases to be Non-Recourse Land Financing. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made. "Hazardous Materials" means any substance, material or waste defined in or regulated under any Environmental Laws. "Hedging Agreements" means any interest rate protection agreements, foreign currency exchange agreements, commodity futures agreements or other interest or exchange rate hedging agreements. 10 16 "Indebtedness" of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations, other than intercompany items, of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person which would appear as liabilities on a balance sheet of such Person, (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (f) all Guaranty Obligations of such Person, (g) the principal portion of all obligations of such Person under (i) Capital Leases and (ii) any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product of such Person where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP, (h) all net obligations of such Person in respect of Hedging Agreements, (i) all preferred stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due by a fixed date, (j) the aggregate amount of uncollected accounts receivable of such Person subject at such time to a sale of receivables (or similar transaction) regardless of whether such transaction is effected without recourse to such Person or in a manner that would not be reflected on the balance sheet of such Person in accordance with GAAP, and (k) all obligations of such Person to repurchase any securities which repurchase obligation is related to the issuance thereof, including, without limitation, obligations commonly known as residual equity appreciation potential shares. The Indebtedness of any Person shall include the Indebtedness of any partnership or unincorporated joint venture in which such Person is legally obligated. "Index Rate Swingline Loan" means a Swingline Loan bearing interest at the Adjusted LIBOR Market Index Rate. "Intellectual Property" has the meaning set forth in Section 6.19. "Interest Coverage Ratio" means, as of the end of each fiscal quarter of the Borrower for the twelve month period ending on such date, with respect to the Borrower, the ratio of (a) EBITDA for the applicable period to (b) interest incurred by the Credit Parties, whether such interest was expensed, capitalized, paid, accrued or scheduled to be paid or accrued. "Interest Payment Date" means (a) as to Base Rate Loans, the last day of each calendar month and the Maturity Date and (b) as to Eurodollar Loans, the last day of each applicable Interest Period and the Maturity Date and in addition, where the applicable 11 17 Interest Period for a Eurodollar Loan is greater than three months, then also the date three months from the beginning of the Interest Period and each three months thereafter. "Interest Period" means, (a) with respect to Eurodollar Loans, a period of one, two, three or six months' duration, as the Borrower may elect, commencing, in each case, on the date of the borrowing (including continuations and conversions thereof) and (b) with respect to Index Rate Swingline Loans, a period beginning on the date of advance and ending on the date specified in the applicable Swingline Loan Request, which shall be between one and seven Business Days in duration; provided, however, that (i) if any Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, such Interest Period shall end on the next preceding Business Day), (ii) no Interest Period shall extend beyond the Maturity Date, and (iii) with respect to Eurodollar Loans, where an Interest Period begins on a day for which there is no numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest Period shall end on the last Business Day of such calendar month. "Investment" in any Person means (a) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of assets (other than assets acquired in the ordinary course of business), shares of Capital Stock, bonds, notes, debentures, joint venture, partnership or other ownership interests or other securities of such other Person or (b) any deposit with, or advance, loan or other extension of credit to, such Person (other than deposits made in connection with the purchase of equipment or other assets in the ordinary course of business) or (c) any other capital contribution to or investment in such Person, including, without limitation, any Guaranty Obligation incurred for the benefit of such Person and any support provided for a Letter of Credit issued on behalf of such Person. "Joinder Agreement" means a joinder agreement substantially in the form of Exhibit 7.12. "Lender" means any of the Persons identified as a "Lender" on the signature pages hereto, and any Eligible Assignee which may become a Lender by way of assignment in accordance with the terms hereof, together with their successors and permitted assigns. "LIBOR Market Index Rate" shall mean, for any day, the one week London Interbank Offered Rate for U.S. Dollar deposits (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as of 11:00 A.M. (London time) on such day, or if such day is not a Business Day, then the immediately preceding Business Day, or if not so reported, then as determined by the Administrative Agent from another recognized source of interbank quotation; provided, however, if more than one rate is specified on Telerate Page 3750, the applicable rate shall be the arithmetic mean of all such rates. 12 18 "Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind, including, without limitation, any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof. "Loan" or "Loans" means the Revolving Loans and the Swingline Loans (or a portion of any Revolving Loan or Swingline Loan), individually or collectively, as appropriate. "London Interbank Offered Rate" means, with respect to any Eurodollar Loan for the Interest Period applicable thereto, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London Interbank Offered Rate for deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period and having an advance date and a maturity date comparable to such Interest Period; provided, however, if more than one rate is specified on Telerate Page 3750, the applicable rate shall be the arithmetic mean of all such rates. "Material Adverse Effect" means a material adverse effect on (a) the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Credit Parties taken as a whole, (b) the ability of the Credit Parties taken as a whole to perform their obligations under this Credit Agreement or any of the other Credit Documents, or (c) the validity or enforceability of this Credit Agreement, any of the other Credit Documents, or the rights and remedies of the Lenders hereunder or thereunder taken as a whole. "Material Subsidiary" means any Domestic Subsidiary of the Borrower, now owned or hereafter acquired, that has assets with a fair market value of $10,000,000 or greater other than as set forth in clauses (a), (b), (c) and (d) below; provided that in no event may there exist Domestic Subsidiaries of the Borrower (other than the Excluded Subsidiaries) that have assets, in the aggregate, with a fair market value in excess of $50,000,000 that are not Guarantors hereunder. For purposes of this definition, the following Subsidiaries (collectively, the "Excluded Subsidiaries") shall not be considered Material Subsidiaries: (a) Pulte Mortgage Corporation; (b) First Heights Bank; (c) North American Builders Indemnity Company; (d) Subsidiaries the investment in which was made as permitted by clause (f) of the definition of Permitted Investments; (e) any Subsidiary formed for the specific purpose of (i) acquiring mortgages or other assets from a Credit Party, for cash or Cash Equivalents and at a value which is comparable to that which would be obtained for such assets on an arm's length transaction and (ii) entering into a securitization program (or similar transaction or series of transactions) with respect to the acquired assets; provided that the sole recourse of such Subsidiary's creditors is the assets of such Subsidiary or another Person that is not a Credit Party; and (f) a Domestic Subsidiary whose sole asset is the ownership of a foreign entity or assets of a foreign entity; provided that the investment in any such Subsidiary subsequent to the Closing Date must be a Permitted Investment. 13 19 "Maturity Date" means August 31, 2005, as such date may be extended in accordance with the terms of Section 2.5 (other than with respect to the Commitments and Loans of any Refusing Lender, in which case the applicable Maturity Date for such Commitments and Loans shall be the RL Maturity Date). "Moody's" means Moody's Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities. "Multiemployer Plan" means a Plan covered by Title IV of ERISA which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA. "Multiple Employer Plan" means a Plan covered by Title IV of ERISA, other than a Multiemployer Plan, with respect to which any Credit Party or any of its Subsidiaries or any ERISA Affiliate and at least one employer other than a Credit Party or any of its Subsidiaries or any ERISA Affiliate are contributing sponsors. "Net Income" means, for any period, the net income after taxes for such period of the Borrower, as determined in accordance with GAAP. "Non-Excluded Taxes" has the meaning set forth in Section 3.13. "Non-Recourse Land Financing" means any Indebtedness of any Credit Party for which the owner of such Indebtedness has no recourse, directly or indirectly, to a Credit Party for the principal of, premium, if any, and interest on such Indebtedness, and for which a Credit Party is not, directly or indirectly, obligated or otherwise liable for the principal of, premium, if any, and interest on such Indebtedness, except pursuant to mortgages, deeds of trust or other security interests or other recourse obligations or liabilities in respect of specific land or other real property interests of a Credit Party; provided that recourse obligations or liabilities of a Credit Party solely for indemnities, covenants or breach of warranty, representation or covenant in respect of any Indebtedness will not prevent Indebtedness from being classified as Non-Recourse Land Financing. "Note" or "Notes" means the Revolving Notes and the Swingline Note, individually or collectively, as appropriate. "Notice of Borrowing" means a request by the Borrower for a Revolving Loan, in the form of Exhibit 2.1(b). "Notice of Continuation/Conversion" means a request by the Borrower to continue an existing Eurodollar Loan for a new Interest Period or to convert a Eurodollar Loan to a Base Rate Loan (other than a Swingline Loan) or a Base Rate Loan (other than a Swingline Loan) to a Eurodollar Loan, in the form of Exhibit 2.3. 14 20 "Participation Interest" means the Extension of Credit by a Lender by way of a purchase of a participation in any Loans as provided in Section 2.2 or Section 3.8. "PBGC" means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA and any successor thereto. "Permitted Holder" means (i) William J. Pulte, (ii) any of his Affiliates, parents, spouse, descendants and spouses of descendants or (iii) any trusts or other entities controlled by Mr. Pulte and his respective estates, heirs, administrators or personal representatives. "Permitted Investments" means Investments which are (a) cash or Cash Equivalents, (b) accounts receivable created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms, (c) inventory, raw materials and general intangibles acquired in the ordinary course of business, (d) Investments by a Credit Party in another Credit Party, (e) loans to directors, officers, employees, agents, customers or suppliers in the ordinary course of business, including the financing to purchasers of homes and other residential properties from a Credit Party, not to exceed, in the aggregate, $10,000,000 at any one time, (f) Investments in international home building and related ventures not to exceed $150 million during the term of this Credit Agreement, (g) Investments in Pulte Mortgage Corporation in an amount not to exceed at any one time the sum of (i) $100 million plus (ii) amounts (net of applicable taxes) received by the Credit Parties from Pulte Mortgage Corporation, as a dividend, subsequent to the Closing Date, (h) acquisitions of mortgages from Pulte Mortgage Corporation or another Affiliate of the Borrower at market or better than market terms for similar types of loans, (i) Investments in Capital Expenditures, or (j) other Investments (in addition to those set forth above) not to exceed, in the aggregate, $200 million at any one time. "Permitted Liens" means (a) Liens securing Credit Party Obligations; (b) Liens for taxes not yet due or Liens for taxes being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof); (c) Liens in respect of property imposed by law arising in the ordinary course of business such as materialmen's, mechanics', warehousemen's, carrier's, landlords' and other nonconsensual statutory Liens which are not yet due and payable or which are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof); (d) pledges or deposits made in the ordinary course of business to secure payment of worker's compensation insurance, unemployment insurance, pensions or social security programs; (e) Liens arising from good faith deposits in connection with or to secure performance of tenders, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business (other than obligations in respect of the payment of borrowed money); (f) Liens arising from good faith deposits in connection with or to secure performance of statutory obligations and 15 21 surety and appeal bonds; (g) easements, rights-of-way, restrictions (including zoning restrictions), matters of plat, minor defects or irregularities in title and other similar charges or encumbrances not, in any material respect, impairing the use of the encumbered property for its intended purposes; (h) judgment Liens that would not constitute an Event of Default; (i) Liens in connection with Capital Leases and Liens securing Indebtedness permitted by Section 8.1(g) and (h); (j) Liens arising by virtue of any statutory or common law provision relating to banker's liens, rights of setoff or similar rights as to deposit accounts or other funds maintained with a creditor depository institution; (k) Liens existing on the Closing Date and identified on Schedule 1.1(b); and (l) Liens granted to secure any Indebtedness permitted by Section 8.1(b); provided that (i) no such Lien shall extend to any property other than the property subject thereto on the Closing Date and (ii) the principal amount of the Indebtedness secured by such Liens shall not be increased from that existing as of the Closing Date (as such Indebtedness has been amortized subsequent to the Closing Date). "Person" means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise (whether or not incorporated), or any Governmental Authority. "Plan" means any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered by ERISA and with respect to which any Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" within the meaning of Section 3(5) of ERISA. "Prime Rate" means the per annum rate of interest established from time to time by the Administrative Agent as its prime rate in effect at its principal office in Charlotte, North Carolina (or such other principal office of the Administrative Agent as communicated in writing to the Borrower and the Lenders). Any change in the interest rate resulting from a change in the Prime Rate shall become effective as of 12:01 a.m. of the Business Day on which each change in the Prime Rate is announced by the Administrative Agent. The Prime Rate is a reference rate used by the Administrative Agent in determining interest rates on certain loans and is not intended to be the lowest rate of interest charged on any extension of credit to any debtor. "Real Properties" means such real properties as the Credit Parties may own or lease (as lessee or sublessee) from third parties from time to time. "Refusing Lender" has the meaning set forth in Section 2.5(a). "Register" has the meaning set forth in Section 11.3(c). "Regulation A, D, O, T, U, or X" means Regulation A, D, O, T, U or X, respectively, of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof. 16 22 "Reportable Event" means a "reportable event" as defined in Section 4043 of ERISA with respect to which the notice requirements to the PBGC have not been waived. "Required Lenders" means Lenders whose aggregate Credit Exposure (as hereinafter defined) constitutes at least 51% of the Credit Exposure of all Lenders at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Lenders the aggregate principal amount of Credit Exposure of such Lender at such time. For purposes of the preceding sentence, the term "Credit Exposure" as applied to each Lender shall mean (a) at any time prior to the termination of the Commitments, the Revolving Loan Commitment Percentage of such Lender multiplied by the Revolving Committed Amount and (b) at any time after the termination of the Commitments, the sum of (i) the principal balance of the outstanding Loans of such Lender plus (ii) such Lender's Participation Interests in the face amount of the outstanding Swingline Loans. "Requirement of Law" means, as to any Person, the articles or certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or to which any of its material property is subject. "Revolving Committed Amount" means the aggregate of the Revolving Loan Commitments of all Lenders, as such amount may be increased, reduced or modified at any time or from time to time pursuant to the terms hereof. The Revolving Committed Amount on the Closing Date shall be THREE HUNDRED SEVENTY-FIVE MILLION DOLLARS ($375,000,000). "Revolving Loan Commitment" means, as to any Lender, the obligation of such Lender to make Revolving Loans hereunder for the account of the Borrower in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule 1.1(a) hereto, as such amount may be increased, reduced or modified at any time or from time to time pursuant to the terms hereof. "Revolving Loan Commitment Percentage" means, as to any Lender at any time, the ratio of (a) such Lender's Revolving Loan Commitment to (b) the Revolving Committed Amount, as such percentage may be increased, reduced or modified at any time or from time to time pursuant to the terms hereof. The Revolving Loan Commitment Percentage for each Lender on the Closing Date shall be as set forth on Schedule 1.1(a). "Revolving Loans" means the Revolving Loans made to the Borrower by the Lenders pursuant to Section 2.1. "Revolving Note" or "Revolving Notes" means the promissory notes of the Borrower in favor of each of the Lenders evidencing the Revolving Loans provided pursuant to Section 2.1, individually or collectively, as appropriate, as such promissory 17 23 notes may be amended, modified, supplemented, extended, renewed or replaced from time to time and as evidenced in the form of Exhibit 2.1(f). "RL Maturity Date" has the meaning set forth in Section 2.5(a). "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, or any successor or assignee of the business of such division in the business of rating securities. "Sale and Leaseback Transaction" means a sale or transfer made by a Credit Party (except a sale or transfer made from one Credit Party to another Credit Party) of any property which is either (a) a manufacturing plant, warehouse, office building or model home whose book value constitutes 1% or more of Consolidated Net Tangible Assets as of the date of determination or (b) any property which is not a manufacturing plant, warehouse, office building or model home whose book value constitutes 5% or more of Consolidated Net Tangible Assets as of the date of determination, if such sale or transfer is made with the intention of leasing, or as part of an arrangement involving the lease of, such property to the Borrower or a Material Subsidiary. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "Single Employer Plan" means any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan. "Solvent" means, with respect to each Credit Party as of a particular date, that on such date (a) such Credit Party is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (b) such Credit Party does not intend to, and does not believe that it will, incur debts or liabilities beyond such Credit Party's ability to pay as such debts and liabilities mature in their ordinary course, (c) such Credit Party is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Credit Party's assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Credit Party is engaged or is to engage, (d) the fair value of the assets of such Credit Party is greater than the total amount of liabilities (excluding (i) letters of credit and surety bonds issued in the normal course of business in connection with such Credit Party's development activities and (ii) intercompany indebtedness owed to other Credit Parties), including, without limitation, contingent liabilities of such Credit Party and (e) the present fair saleable value of the assets of such Credit Party is not less than the amount that will be required to pay the probable liability of such Credit Party on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. 18 24 "Subordinated Debt" means any Indebtedness incurred by a Credit Party that is subordinated in full to the Loans on subordination terms acceptable to the Administrative Agent. "Subsidiary" means, as to any Person, (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time, any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, and (b) any partnership, association, joint venture, limited liability company or other entity in which such person directly or indirectly through Subsidiaries has more than a 50% equity interest at any time. "Swingline Committed Amount" means FIFTY MILLION DOLLARS ($50,000,000). "Swingline Loan Commitment" means, with respect to Bank of America, the commitment of Bank of America to make Swingline Loans available to the Borrower in the principal amount of up to the Swingline Committed Amount. "Swingline Loan Request" means a request by the Borrower for a Swingline Loan in substantially the form of Exhibit 2.2(b). "Swingline Loans" means the loans made by Bank of America pursuant to Section 2.2. "Swingline Note" means the promissory note of the Borrower in favor of Bank of America evidencing the Swingline Loans provided pursuant to Section 2.2, as such promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to time in and as evidenced by the form of Exhibit 2.2(e). "Syndication Agent" means Bank One, NA (or any successor thereto). "Tangible Net Worth" means, as of any date, shareholders' equity or net worth of the Borrower, as determined in accordance with GAAP minus (i) intangibles (as determined in accordance with GAAP) and (ii) Investments described in clause (f) of the definition of Permitted Investments. "Termination Event" means (a) with respect to any Plan, the occurrence of a Reportable Event or the substantial cessation of operations (within the meaning of Section 4062(e) of ERISA); (b) the withdrawal of any Credit Party or any of its Subsidiaries or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (c) the distribution of a notice of intent to 19 25 terminate or the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to terminate or the actual termination of a Plan by the PBGC under Section 4042 of ERISA; (e) any event or condition which might reasonably constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (f) the complete or partial withdrawal of any Credit Party or any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan; or (g) the adoption of an amendment to any Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA. "Upfront Fees" means the fees payable to the Lenders pursuant to Section 3.4(e). "Utilization Fees" means the fees payable to the Lenders pursuant to Section 3.4(b). "Utilized Revolving Committed Amount" means, for any period from the Closing Date to the Maturity Date, the amount equal to the daily average sum for such period of the aggregate principal amount of all Revolving Loans outstanding plus the aggregate amount of all Swingline Loans outstanding. "Voting Stock" of a corporation means all classes of the Capital Stock of such corporation then outstanding and normally entitled to vote in the election of directors. 1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS. For purposes of computation of periods of time hereunder, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding." References in this Agreement to "Articles", "Sections", "Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits of or to this Agreement unless otherwise specifically provided. 1.3 ACCOUNTING TERMS. Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis. All calculations made for the purposes of determining compliance with this Credit Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 7.1 (or, prior to the delivery of the first financial statements pursuant to Section 7.1, consistent with the financial statements described in Section 5.1(d)); provided, however, if (a) the Borrower shall object to determining such compliance on such basis at the time of delivery of such financial statements due to any change in GAAP or the rules promulgated with respect thereto or (b) the Administrative Agent or the Required Lenders shall so object in writing within 30 days after delivery of such financial statements, then such calculations shall be made on a basis consistent with GAAP as in effect as of the date of the most recent financial statements delivered by the Borrower to the Lenders to which no such objection shall have been made. 20 26 1.4 TIME. All references to time herein shall be references to Eastern Standard Time or Eastern Daylight Time, as the case may be, unless specified otherwise. SECTION 2 CREDIT FACILITIES 2.1 REVOLVING LOANS. (a) Revolving Loan Commitment. Subject to the terms and conditions set forth herein, each Lender severally agrees to make revolving loans (each a "Revolving Loan" and collectively the "Revolving Loans") to the Borrower, in Dollars, at any time and from time to time, during the period from and including the Effective Date to but not including the Maturity Date (or such earlier date if the Revolving Committed Amount has been terminated as provided herein); provided, however, that (i) the sum of the aggregate amount of Revolving Loans outstanding plus the aggregate amount of Swingline Loans outstanding plus the aggregate amount of secured Indebtedness incurred by the Credit Parties pursuant to Section 8.1(h) in excess of $100,000,000 shall not exceed the Revolving Committed Amount and (ii) with respect to each individual Lender, the Lender's pro rata share of outstanding Revolving Loans plus such Lender's (other than Bank of America) pro rata share of outstanding Swingline Loans shall not exceed such Lender's Revolving Loan Commitment Percentage of the Revolving Committed Amount. Subject to the terms of this Credit Agreement (including Section 3.3), the Borrower may borrow, repay and reborrow Revolving Loans. (b) Method of Borrowing for Revolving Loans. By no later than 12:00 noon (i) on the date of the requested borrowing of Revolving Loans that will be Base Rate Loans or (ii) three Business Days prior to the date of the requested borrowing of Revolving Loans that will be Eurodollar Loans, the Borrower shall telephone the Administrative Agent with the information described below as well as submit a written Notice of Borrowing in the form of Exhibit 2.1(b) (which may be submitted via telecopy) to the Administrative Agent setting forth (A) the amount requested, (B) whether such Revolving Loans shall accrue interest at the Base Rate or the Adjusted Eurodollar Rate, (C) with respect to Revolving Loans that will be Eurodollar Loans, the Interest Period applicable thereto and (D) certification that the Borrower has complied in all respects with Section 5.2. Revolving Loans made on the Effective Date may be Base Rate Loans or, subject to compliance by the Borrower with the terms of this Section 2.1(b) and delivery by the Borrower to the Administrative Agent of a funding indemnity letter in form and substance satisfactory to the Administrative Agent, Eurodollar Loans or a combination thereof. 21 27 (c) Funding of Revolving Loans. Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly inform the Lenders as to the terms thereof. Each Lender shall make its Revolving Loan Commitment Percentage of the requested Revolving Loans available to the Administrative Agent by 3:00 p.m. on the date specified in the Notice of Borrowing by deposit, in Dollars, of immediately available funds at the Agency Services Address. No Lender shall be responsible for the failure or delay by any other Lender in its obligation to make Revolving Loans hereunder; provided, however, that the failure of any Lender to fulfill its obligations hereunder shall not relieve any other Lender of its obligations hereunder. Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Revolving Loan that such Lender does not intend to make available to the Administrative Agent its portion of the Revolving Loans to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on the date of such Revolving Loans, and the Administrative Agent in reliance upon such assumption, may (in its sole discretion but without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent, the Administrative Agent shall be able to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent will promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from the Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent at a per annum rate equal to (i) from the Borrower at the applicable rate for such Revolving Loan pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal Funds Rate. (d) Reductions of Revolving Committed Amount. (i) Upon at least three Business Days' notice, the Borrower shall have the right to permanently reduce, without premium or penalty, all or part of the aggregate unused amount of the Revolving Committed Amount at any time or from time to time; provided that (A) each partial reduction shall be in an aggregate amount at least equal to $5,000,000 and in integral multiples of $1,000,000 above such amount and (B) no reduction shall be made which would reduce the Revolving Committed Amount to an amount less than the aggregate amount of Revolving Loans outstanding plus the aggregate amount of Swingline Loans outstanding plus the aggregate amount of secured Indebtedness incurred by the Credit Parties pursuant to Section 8.1(h) in excess of $100,000,000. (ii) On the first anniversary of the Closing Date, if Bank of America has not assigned at least $30,000,000 of its Revolving Loan Commitment to an Eligible 22 28 Assignee, then the Revolving Loan Commitment of Bank of America and the Revolving Committed Amount shall be reduced by an amount equal to the sum of $30,000,000 minus the amount of Bank of America's Revolving Loan Commitment assigned to an Eligible Assignee prior to such date. Notwithstanding anything to the contrary in Section 3.3(c), any such reduction of the Revolving Loan Commitment of Bank of America and the Revolving Committed Amount shall be accompanied by a prepayment (if necessary) of the outstanding Loans of Bank of America in an amount such that, after giving effect to such prepayment, the outstanding Loans of Bank of America shall not exceed its Revolving Loan Commitment, as reduced hereby. Each of the Lenders consents to the foregoing reduction of the Revolving Loan Commitment of Bank of America (and the corresponding prepayment of Bank of America's Loans and reduction of the Revolving Committed Amount) without a pro rata reduction of such Lender's Revolving Loan Commitment (or corresponding prepayment of such Lender's Loans). (iii) Any reduction in (or termination of) the Revolving Committed Amount may not be reinstated without the consent of all the Lenders; provided, however, the Borrower shall still be entitled to increase the Revolving Committed Amount in accordance with the terms of Section 2.1(e). The Administrative Agent shall immediately notify the Lenders of any reduction in the Revolving Committed Amount. (e) Increase of Revolving Committed Amount. Prior to the Maturity Date and upon at least 15 days' prior written notice to the Administrative Agent (which notice shall be promptly transmitted by the Administrative Agent to each Lender), the Borrower shall have the right, subject to the terms and conditions set forth below, to increase the Revolving Committed Amount; provided that (a) such increase must be in a minimum amount of $10,000,000 and in integral multiples of $1,000,000 above such amount, (b) the Revolving Committed Amount cannot be increased to an aggregate amount greater than the sum of (i) Six Hundred Million Dollars ($600,000,000) minus (ii) the aggregate amount of all reductions of the Revolving Committed Amount pursuant to Section 2.1(d), without the prior written consent of the Required Lenders, (c) the Borrower shall execute and deliver such Note(s) as are necessary to reflect the increase in the Revolving Committed Amount, (d) Schedule 1.1(a) hereto shall be amended to reflect the revised Revolving Committed Amount and aggregate Commitments of the Lenders, (e) if any Loans are outstanding at the time of an increase in the Revolving Committed Amount, the Borrower will prepay (provided that any such prepayment shall be subject to Section 3.14 hereof) one or more existing Loans in an amount necessary such that after giving effect to the increase in the Revolving Committed Amount each Lender will hold its pro rata share (based on its share of the revised aggregate Commitments) of outstanding Loans and (f) during the first year following the Closing Date, the Revolving Committed Amount cannot be increased until Bank of America has assigned at least $30,000,000 of its Revolving Loan Commitment to one or more Eligible Assignees. 23 29 Any such increase in the Revolving Committed Amount shall apply, at the option of the Borrower, to (i) the Commitment of one or more existing Lenders; provided that any Lender whose Commitment is being increased must consent in writing thereto and/or (ii) the creation of a new Commitment to one or more institutions that is not an existing Lender; provided that any such institution must qualify as an Eligible Assignee and must become a Lender under this Credit Agreement by execution and delivery of an appropriate joinder agreement or of counterparts to this Credit Agreement in a manner acceptable to the Borrower and the Administrative Agent. (f) Revolving Notes. The Revolving Loans made by each Lender shall be evidenced by a duly executed promissory note of the Borrower to such Lender in an original principal amount equal to such Lender's Revolving Commitment Percentage of the Revolving Committed Amount and in substantially the form of Exhibit 2.1(f). 2.2 SWINGLINE LOANS SUBFACILITY. (a) Swingline Loans. Bank of America hereby agrees, on the terms and subject to the conditions set forth herein and in the other Credit Documents, to make revolving loans to the Borrower, in Dollars, at any time and from time to time during the period from and including the Effective Date to but not including the Maturity Date (each such loan, a "Swingline Loan" and collectively, the "Swingline Loans"); provided that (i) the aggregate principal amount of the Swingline Loans outstanding at any one time shall not exceed the Swingline Committed Amount, and (ii) the aggregate amount of Swingline Loans outstanding plus the aggregate amount of Revolving Loans outstanding plus the aggregate amount of secured Indebtedness incurred by the Credit Parties, pursuant to Section 8.1(h), in excess of $100,000,000 shall not exceed the Revolving Committed Amount. Prior to the Maturity Date, Swingline Loans may be repaid and reborrowed by the Borrower in accordance with the provisions hereof. (b) Method of Borrowing and Funding Swingline Loans. By no later than 2:00 p.m. on the date of the requested borrowing of Swingline Loans, the Borrower shall provide telephonic notice to Bank of America, followed promptly by a written Swingline Loan Request in the form of Exhibit 2.2(b) (which may be submitted via telecopy), each of such telephonic notice and such written Swingline Loan Request setting forth (i) the amount of the requested Swingline Loan (which shall not be less than $100,000 and in integral multiples of $50,000 in excess thereof), (ii) the date of the requested Swingline Loan, (iii) certification that the Borrower has complied in all respects with Section 5.2 and (iv) whether such Swingline Loan is to be a Base Rate Loan or an Index Rate Swingline Loan and, if such Swingline Loan is to be an Index Rate Swingline Loan, the applicable Interest Period. If the Borrower has requested an Index Rate Swingline Loan, Bank of America shall provide to the Borrower no later than 2:30 p.m. on the date of such request the Adjusted LIBOR Market Index Rate. The Borrower shall notify Bank of America by 3:00 p.m. on such date whether it wishes to accept the Adjusted LIBOR Market Index Rate. Failure of the Borrower to timely accept the Adjusted LIBOR Market Index Rate shall make the Adjusted LIBOR Market Index Rate and the corresponding Index Rate Swingline Loan 24 30 void. Bank of America shall initiate the transfer of funds representing the Swingline Loan advance to the Borrower by 4:00 p.m. on the Business Day of the requested borrowing. (c) Repayment and Participations of Swingline Loans. The Borrower agrees to repay all Swingline Loans that are Base Rate Loans within one Business Day of demand therefor by Bank of America and all Swingline Loans that are Index Rate Swingline Loans at the end of the applicable Interest Period; provided that each Swingline Loan shall be repaid within seven Business Days from the date of advance. Each repayment of a Swingline Loan may be accomplished by requesting Revolving Loans, which request is not subject to the conditions set forth in Section 5.2. In the event that the Borrower shall fail to timely repay any Swingline Loan, and in any event upon (i) the request of Bank of America, (ii) the occurrence of an Event of Default described in Section 9.1(f) or (iii) the acceleration of any Loan or termination of any Commitment pursuant to Section 9.2, each other Lender shall irrevocably and unconditionally purchase from Bank of America, without recourse or warranty, an undivided interest and participation in such Swingline Loan in an amount equal to such other Lender's Revolving Loan Commitment Percentage thereof, by directly purchasing a participation in such Swingline Loan in such amount (regardless of whether the conditions precedent thereto set forth in Section 5.2 hereof are then satisfied, whether or not the Borrower has submitted a Notice of Borrowing and whether or not the Commitments are then in effect, any Event of Default exists or all the Loans have been accelerated) and paying the proceeds thereof to Bank of America at the Agency Services Address, in Dollars and in immediately available funds. If such amount is not in fact made available to Bank of America by any Lender, Bank of America shall be entitled to recover such amount on demand from such Lender, together with accrued interest thereon (to the extent the Borrower fails to pay accrued interest with respect to such amount) for each day from the date of demand thereof, at the Federal Funds Rate. If such Lender does not pay such amount forthwith upon Bank of America's demand therefor, and until such time as such Lender makes the required payment, Bank of America shall be deemed to continue to have outstanding Swingline Loans in the amount of such unpaid participation obligation for all purposes of the Credit Documents other than those provisions requiring the other Lenders to purchase a participation therein. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, and any other amounts due to it hereunder to Bank of America to fund Swingline Loans in the amount of the participation in Swingline Loans that such Lender failed to purchase pursuant to this Section 2.2(c) until such amount has been purchased (as a result of such assignment or otherwise). On the date the Lenders are required to purchase participations in outstanding Swingline Loans pursuant to this Section 2.2(c), the outstanding principal amount, including Bank of America's pro rata share, of such Swingline Loans shall be deemed to be a Revolving Loan accruing interest at the Base Rate. (d) Interest on Swingline Loans. Subject to the provisions of Section 3.1, each Swingline Loan shall bear interest at a per annum rate equal to the Base Rate or the Adjusted LIBOR Market Index Rate, as applicable. 25 31 (e) Swingline Note. The Swingline Loans shall be evidenced by a duly executed promissory note of the Borrower to Bank of America in the original principal amount of the Swingline Committed Amount and in substantially the form of Exhibit 2.2(e). 2.3 CONTINUATIONS AND CONVERSIONS. The Borrower shall have the option, on any Business Day, to continue existing Eurodollar Loans for a subsequent Interest Period, to convert Base Rate Loans (other than Swingline Loans) into Eurodollar Loans or to convert Eurodollar Loans into Base Rate Loans (other than Swingline Loans); provided, however, that (a) each such continuation or conversion must be requested by the Borrower pursuant to a written Notice of Continuation/Conversion, in the form of Exhibit 2.3, in compliance with the terms set forth below, (b) except as provided in Section 3.11, Eurodollar Loans may only be continued or converted into Base Rate Loans on the last day of the Interest Period applicable thereto, (c) Eurodollar Loans may not be continued nor may Base Rate Loans be converted into Eurodollar Loans during the existence and continuation of a Default or an Event of Default and (d) any request to continue a Eurodollar Loan that fails to comply with the terms hereof or any failure to request a continuation of a Eurodollar Loan at the end of an Interest Period shall constitute a conversion to a Base Rate Loan on the last day of the applicable Interest Period. Each continuation or conversion must be requested by the Borrower no later than 12:00 noon (i) on the date for a requested conversion of a Eurodollar Loan to a Base Rate Loan or (ii) three Business Days prior to the date for a requested continuation of a Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in each case pursuant to a written Notice of Continuation/Conversion submitted to the Administrative Agent which shall set forth (A) whether the Borrower wishes to continue or convert such Loans and (B) if the request is to continue a Eurodollar Loan or convert a Base Rate Loan to a Eurodollar Loan, the Interest Period applicable thereto. 2.4 MINIMUM AMOUNTS. Each request for a borrowing, conversion or continuation shall be subject to the requirements that (a) each Eurodollar Loan shall be in a minimum amount of $5,000,000 (and in integral multiples of $1,000,000 in excess thereof), (b) each Base Rate Loan shall be in a minimum amount of the lesser of $1,000,000 (and integral multiples of $100,000 in excess thereof) or the remaining amount available under the Revolving Committed Amount and (c) each Swingline Loan shall be in a minimum amount of $100,000 (and in integral multiples of $50,000 in excess thereof) or the remaining amount of the Swingline Committed Amount. For the purposes of this Section, all Eurodollar Loans with the same Interest Periods that begin and end on the same date shall be considered as one Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if they begin on the same date, shall be considered as separate Eurodollar Loans. 2.5 EXTENSION OF MATURITY DATE. (a) At least 60 days but not more than 75 days prior to each annual anniversary of the Closing Date, the Borrower may, by delivering a written notice to the 26 32 Administrative Agent, request that the Maturity Date be extended for one additional year. The Administrative Agent shall notify each Lender of such request promptly upon its receipt of such notice and shall request that each Lender respond to such request by the Borrower within ten Business Days of notice thereof. If any Lender does not consent or respond to the Borrower's request then such Lender (a "Refusing Lender") shall be deemed to have rejected such request. If Lenders whose combined Revolving Loan Commitment Percentages equal at least 80% (the "Extension Required Lenders"; each Lender agreeing to extend its Revolving Loan Commitment is referred to herein as an "Extending Lender") timely agree in writing to extend their Revolving Loan Commitments, then (i) the Revolving Loan Commitments of the Extending Lenders shall without further action be extended for an additional one year period, (ii) the term "Maturity Date" shall thenceforth mean, (A) as to the Commitments and Loans of the Extending Lenders, the last day of such additional one year period and (B) as to the Commitments and Loans of the Refusing Lenders, the Maturity Date in effect prior to such extension (each a "RL Maturity Date"), (iii) subject to the terms of subsection (b) below, the Revolving Loan Commitments of the Refusing Lenders shall terminate on the applicable RL Maturity Date and the Loans and other amounts owed to such Lenders shall be due and payable on such date and (iv) subject to the terms of subsection (b) below, on a RL Maturity Date (A) the Revolving Committed Amount shall be reduced by an amount equal to the sum of the Revolving Loan Commitments of the applicable Refusing Lenders and (B) the Revolving Loan Commitment Percentage of the Extending Lenders shall be reallocated, on a pro rata basis, so that the sum of such Revolving Loan Commitment Percentages equals one hundred percent (100%). If such extension is not approved by the Extension Required Lenders, the Maturity Date then in effect will be retained. (b) So long as the Extension Required Lenders consent to the extension of the Maturity Date in accordance with the terms of Section 2.5(a): (i) with respect to any Refusing Lender, the Borrower may request, in its own discretion and at its own expense, such Refusing Lender to transfer and assign (and such Refusing Lender shall be required to transfer and assign upon such request) in whole (but not in part), without recourse and in accordance with and subject to the terms of Section 11.3(b), all of its interests, rights and obligations under this Credit Agreement to one or more Eligible Assignees (which may be one or more existing Lenders if any existing Lender accepts such assignment); provided that (A) such assignment or assignments shall not conflict with any law, rule, regulation or order of any court or other Governmental Authority, (B) the Borrower or such Eligible Assignee or Eligible Assignees shall pay to such Refusing Lender in immediately available funds the principal of and interest accrued to the date of such payment on the portion of the Loans hereunder held by such Refusing Lender and all other amounts owed to such Refusing Lender hereunder, as well as any processing fee owing to the Administrative Agent under Section 11.3(b), (C) the maturity date of the Loans transferred to such Eligible Assignee shall be the Maturity Date as extended in accordance with 27 33 Section 2.5(a) above and (D) such transfer and assignment must occur on or prior to the applicable RL Maturity Date; or (ii) the Borrower may (A) notify the Administrative Agent and the Extending Lenders in writing that it wishes to (and each such Extending Lender shall agree to) reduce the Revolving Loan Committed Amount by an amount equal to the sum of the Revolving Loan Commitments of the Refusing Lenders, (B) pay all outstanding Loans of the Refusing Lenders and any other amounts owing to the Refusing Lenders, and terminate the Revolving Loan Commitments of the Refusing Lenders and (C) reallocate the Revolving Loan Commitment Percentage of the Extending Lenders, on a pro rata basis, so that the sum of such Revolving Loan Commitment Percentages equals one hundred percent (100%). (c) The Borrower shall indemnify each Lender (whether an Extending Lender or Refusing Lender) for any eurodollar breakage costs or expenses incurred by such Lender as a result of any extension of the Maturity Date pursuant to this Section 2.5 and any assignment of such Lender's Commitments and Loans or any reallocation of such Lender's Revolving Loan Commitment Percentage in connection with such extension. (d) Each of the Lenders hereby authorizes the Administrative Agent, on their behalf, to enter into an amendment to this Credit Agreement (and the Credit Parties hereby agree to enter into any such amendment on terms reasonably acceptable to the Credit Parties and the Administrative Agent) to effectuate any extension of the Maturity Date, reduction of the Revolving Committed Amount, repayment of Loans or reallocation of the Revolving Loan Commitment Percentages, in each case as expressly contemplated by the terms of this Section 2.5. SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS 3.1 INTEREST. (a) Interest. Subject to the provisions of Section 3.1(b): (i) Base Rate Loans. During such periods as Loans shall be comprised in whole or in part of Base Rate Loans, such Base Rate Loans shall bear interest at a per annum rate equal to the Base Rate. (ii) Eurodollar Loans. During such periods as Loans shall be comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans shall bear interest at a per annum rate equal to the Adjusted Eurodollar Rate. 28 34 (iii) Swingline Loans. Swingline Loans shall bear interest in accordance with the terms of Section 2.2(d). (b) Default Rate of Interest. Upon the occurrence, and during the continuance, of an Event of Default, the principal of and, to the extent permitted by law, interest on the Loans and any other amounts owing hereunder or under the other Credit Documents (including without limitation fees and expenses) shall bear interest, payable on demand, at a per annum rate equal to 2% plus the rate which would otherwise be applicable (or if no rate is applicable, then the rate for Revolving Loans that are Base Rate Loans plus two percent (2%) per annum). (c) Interest Payments. Interest on Loans shall be due and payable in arrears on each Interest Payment Date. If an Interest Payment Date falls on a date which is not a Business Day, such Interest Payment Date shall be deemed to be the next succeeding Business Day, except that in the case of Eurodollar Loans where the next succeeding Business Day falls in the next succeeding calendar month, then such Interest Payment Date shall be deemed to be the next preceding Business Day. 3.2 PLACE AND MANNER OF PAYMENTS. All payments of principal, interest, fees, expenses and other amounts to be made by a Credit Party under this Credit Agreement shall be made without setoff, deduction or counterclaim and received not later than 2:00 p.m. on the date when due, in Dollars and in immediately available funds, by the Administrative Agent at the Agency Services Address. Payments received after such time shall be deemed to have been received on the next Business Day. The Borrower shall, at the time it makes any payment under this Credit Agreement, specify to the Administrative Agent the Loans, fees or other amounts payable by the Borrower hereunder to which such payment is to be applied (and in the event that it fails to specify, or if such application would be inconsistent with the terms hereof, the Administrative Agent shall, subject to Section 3.7, distribute such payment to the Lenders in such manner as the Administrative Agent may deem appropriate). The Administrative Agent will distribute such payments to the applicable Lenders on the same Business Day if any such payment is received prior to 2:00 p.m.; otherwise the Administrative Agent will distribute such payment to the applicable Lenders on the next succeeding Business Day. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day (subject to accrual of interest and fees for the period of such extension), except that in the case of Eurodollar Loans, if the extension would cause the payment to be made in the next following calendar month, then such payment shall instead be made on the next preceding Business Day. 3.3 PREPAYMENTS. (a) Voluntary Prepayments. The Borrower shall have the right to prepay Loans in whole or in part from time to time without premium or penalty; provided, however, that (i) Eurodollar Loans may only be prepaid on three Business Days' prior written notice to the Administrative Agent and (ii) each such partial prepayment of Loans shall be in the 29 35 minimum principal amount of (A) $5,000,000 and integral multiples of $1,000,000 in excess thereof for Revolving Loans and (B) $100,000 and integral multiples of $50,000 in excess thereof for Swingline Loans. All prepayments under this Section shall be subject to Section 3.14 and be accompanied by interest on the principal amount prepaid through the date of prepayment. (b) Mandatory Prepayments. If, at any time, the sum of the aggregate amount of Revolving Loans outstanding plus Swingline Loans outstanding plus the aggregate amount of secured Indebtedness incurred by the Credit Parties, pursuant to Section 8.1(h), in excess of $100,000,000 exceeds the Revolving Committed Amount, the Borrower shall immediately make a principal payment to the Administrative Agent in the manner and in an amount such that the sum of the aggregate amount of Revolving Loans outstanding plus Swingline Loans outstanding plus the aggregate amount of secured Indebtedness incurred by the Credit Parties, pursuant to Section 8.1(h), in excess of $100,000,000 is less than or equal to the Revolving Committed Amount (to be applied as set forth in Section 3.3(c) below). (c) Application of Prepayments. All amounts required to be paid pursuant to Section 3.3(b) shall be applied first to Swingline Loans and second to Revolving Loans. Within the parameters of the applications set forth above, prepayments shall be applied first to Base Rate Loans and then to Eurodollar Loans (or Index Rate Swingline Loans, as applicable) in direct order of Interest Period maturities. All prepayments hereunder shall be subject to Section 3.14 and shall be accompanied by interest on the principal amount prepaid through the date of prepayment. 3.4 FEES. (a) Facility Fees. In consideration of the Revolving Committed Amount being made available by the Lenders hereunder, the Borrower agrees to pay to the Administrative Agent, for the pro rata benefit of each Lender (based on each Lender's Revolving Loan Commitment Percentage of the Revolving Committed Amount), a per annum fee equal to the Applicable Percentage for Facility Fees multiplied by the Revolving Committed Amount (the "Facility Fees"). The Facility Fees shall commence to accrue on the Effective Date and shall be due and payable in arrears on the first Business Day after the end of each fiscal quarter of the Borrower (as well as on the Maturity Date and on any date that the Revolving Committed Amount is reduced) for the immediately preceding fiscal quarter (or portion thereof), beginning with the first of such dates to occur after the Closing Date. (b) Utilization Fees. (i) If, as calculated on the last day of each fiscal quarter of the Borrower (as well as on the Maturity Date and on any date that the Revolving Loan Commitment is reduced), the Utilized Revolving Committed Amount for such fiscal quarter exceeds fifty percent (50%) of the Revolving Committed Amount, then for the pro rata benefit of each Lender, the Borrower agrees to pay to the Administrative 30 36 Agent a per annum fee equal to one-tenth of one percent (.10%) of the Utilized Revolving Committed Amount (the "Utilization Fees"). (ii) The Utilization Fees, if any, shall be due and payable in arrears on the first Business Day after the end of each fiscal quarter of the Borrower (as well as on the Maturity Date and on any date that the Revolving Loan Commitment is reduced) for the immediately preceding fiscal quarter (or portion thereof), beginning with the first of such dates to occur after the Closing Date. (c) Administrative Fees. The Borrower agrees to pay to the Administrative Agent, for its own account, an annual fee (the "Administrative Fees") in accordance with the terms of the Fee Letter. (d) Extension Fee. The Borrower agrees to pay to the Administrative Agent for the pro rata benefit of each Extending Lender, at the time of any extension of the Maturity Date pursuant to Section 2.5, such extension fees as are agreed upon among the Borrower, the Administrative Agent and such Extending Lenders. (e) Upfront Fees. In consideration of the Revolving Committed Amount being made available by the Lenders hereunder, the Borrower agrees to pay to each Lender an upfront fee in accordance with the terms of the fee letter among such Lender, the Borrower and the Administrative Agent (the "Upfront Fees"). The Upfront Fees shall be due and payable on or prior to the Effective Date. 3.5 PAYMENT IN FULL AT MATURITY. On the Maturity Date, the entire outstanding principal balance of all Revolving Loans and Swingline Loans, together with accrued but unpaid interest and all other sums owing with respect thereto, shall be due and payable in full, unless accelerated sooner pursuant to Section 9.2. 3.6 COMPUTATIONS OF INTEREST AND FEES. (a) Except for Base Rate Loans and Swingline Loans, in which case interest shall be computed on the basis of a 365 or 366 day year as the case may be, all computations of interest and fees hereunder shall be made on the basis of the actual number of days elapsed over a year of 360 days. Interest shall accrue from and include the date of borrowing (or continuation or conversion) but exclude the date of payment. (b) It is the intent of the Lenders and the Credit Parties to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between the Lenders and the Borrower are hereby limited by the provisions of this paragraph which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral. In no way, nor in any event or contingency (including but not limited to prepayment or acceleration of the maturity of any obligation), shall the interest taken, reserved, contracted for, charged, or received under this Credit 31 37 Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount permissible under applicable law. If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum nonusurious amount, any such construction shall be subject to the provisions of this paragraph and such documents shall be automatically reduced to the maximum nonusurious amount permitted under applicable law, without the necessity of execution of any amendment or new document. If any Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum lawful amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans and not to the payment of interest, or refunded to the Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of the Loans or any other Indebtedness evidenced by any of the Credit Documents does not include the right to accelerate the payment of any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand. All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such Indebtedness does not exceed the maximum nonusurious amount permitted by applicable law. 3.7 PRO RATA TREATMENT. Except to the extent otherwise provided herein, each Revolving Loan borrowing, each payment or prepayment of principal of any Revolving Loan, each payment of fees (other than the Administrative Fees retained by the Administrative Agent for its own account), each reduction of the Revolving Committed Amount, and each conversion or continuation of any Revolving Loan, shall (except as otherwise provided in Section 3.11) be allocated pro rata among the relevant Lenders in accordance with the respective Revolving Loan Commitment Percentages of such Lenders (or, if the Commitments of such Lenders have expired or been terminated, in accordance with the respective principal amounts of the outstanding Loans and Participation Interests of such Lenders); provided that, if any Lender shall have failed to pay its applicable pro rata share of any Revolving Loan, then any amount to which such Lender would otherwise be entitled pursuant to this Section 3.7 shall instead be payable to the Administrative Agent until the share of such Revolving Loan not funded by such Lender has been repaid; provided further, that in the event any amount paid to any Lender pursuant to this Section 3.7 is rescinded or must otherwise be returned by the Administrative Agent, each Lender shall, upon the request of the Administrative Agent, repay to the Administrative Agent the amount so paid to such Lender, with interest for the period commencing on the date such payment is returned by the Administrative Agent until the date the Administrative Agent receives such repayment at a rate per annum equal to, during the period to but excluding the date two Business Days after such request, the Federal Funds Rate, and thereafter, the Base Rate plus two percent (2%) per annum. 32 38 3.8 SHARING OF PAYMENTS. The Lenders agree among themselves that, except to the extent otherwise provided herein, in the event that any Lender shall obtain payment in respect of any Loan or any other obligation owing to such Lender under this Credit Agreement through the exercise of a right of setoff, banker's lien or counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, in excess of its pro rata share of such payment as provided for in this Credit Agreement, such Lender shall promptly pay in cash or purchase from the other Lenders a participation in such Loans and other obligations in such amounts, and make such other adjustments from time to time, as shall be equitable to the end that all Lenders share such payment in accordance with their respective ratable shares as provided for in this Credit Agreement. The Lenders further agree among themselves that if payment to a Lender obtained by such Lender through the exercise of a right of setoff, banker's lien, counterclaim or other event as aforesaid shall be rescinded or must otherwise be restored, each Lender which shall have shared the benefit of such payment shall, by payment in cash or a repurchase of a participation theretofore sold, return its share of that benefit (together with its share of any accrued interest payable with respect thereto) to each Lender whose payment shall have been rescinded or otherwise restored. The Borrower agrees that any Lender so purchasing such a participation may, to the fullest extent permitted by law, exercise all rights of payment, including setoff, banker's lien or counterclaim, with respect to such participation as fully as if such Lender were a holder of such Loan or other obligation in the amount of such participation. Except as otherwise expressly provided in this Credit Agreement, if any Lender or the Administrative Agent shall fail to remit to the Administrative Agent or any other Lender an amount payable by such Lender or such Administrative Agent to such Administrative Agent or such other Lender pursuant to this Credit Agreement on the date when such amount is due, such payments shall be made together with interest thereon for each date from the date such amount is due until the date such amount is paid to such Administrative Agent or such other Lender at a rate per annum equal to the Federal Funds Rate. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 3.8 applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders under this Section 3.8 to share in the benefits of any recovery on such secured claim. 3.9 CAPITAL ADEQUACY. If, after the date hereof, any Lender has determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable law, rule or regulation regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's (or parent corporation's) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, 33 39 effectiveness, change or compliance (taking into consideration such Lender's (or parent corporation's) policies with respect to capital adequacy), then, upon written notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction. Each such written notice of a determination by any such Lender of amounts owing under this Section 3.9 shall set forth and certify in reasonable detail the basis for such determination and the calculation of amounts so owing, which certification shall, absent manifest error, be conclusive and binding on the parties hereto. Notwithstanding anything to the contrary contained herein, the Borrower shall not be required to make any payments to any Lender or the Administrative Agent pursuant to this Section 3.9 relating to any period of time which is greater than 90 days prior to such Person's request for additional payment except for retroactive application of such law, rule or regulation, in which case the Borrower is required to make such payments so long as such Person makes a request therefor within 90 days after the public announcement of such retroactive application. This covenant shall survive the termination of this Credit Agreement and the payment of the Loans and all other amounts payable hereunder. 3.10 INABILITY TO DETERMINE INTEREST RATE. If prior to the first day of any Interest Period, the Administrative Agent shall have determined in good faith (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter, and will also give prompt written notice to the Borrower when such conditions no longer exist. If such notice is given (a) any Eurodollar Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans and (b) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Loans shall be converted to or continued as Base Rate Loans. Until such notice is withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor shall the Borrower have the right to convert Base Rate Loans to Eurodollar Loans. 3.11 ILLEGALITY. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof occurring after the Closing Date shall make it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such Lender shall promptly give written notice of such circumstances to the Borrower and the Administrative Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (b) the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate Loan to Eurodollar Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on the respective last 34 40 days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.14. 3.12 REQUIREMENTS OF LAW. If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority, in each case made subsequent to the Closing Date (or, if later, the date on which such Lender becomes a Lender): (a) shall subject such Lender to any tax of any kind whatsoever with respect to any Eurodollar Loans made by it or its obligation to make Eurodollar Loans, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 3.13 (including Non-Excluded Taxes imposed solely by reason of any failure of such Lender to comply with its obligations under Section 3.13(b)) and changes in taxes measured by or imposed upon the overall net income, or franchise tax (imposed in lieu of such net income tax), of such Lender or its applicable lending office, branch, or any affiliate thereof); (b) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender which is not otherwise included in the determination of the Eurodollar Rate hereunder; or (c) shall impose on such Lender any other condition (excluding any tax of any kind whatsoever); and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable, provided that, in any such case, the Borrower may elect to convert the Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving the Administrative Agent at least one Business Day's notice of such election, in which case the Borrower shall promptly pay to such Lender, upon demand, without duplication, such amounts, if any, as may be required pursuant to Section 3.14. If any Lender becomes entitled to claim any additional amounts pursuant to this Section 3.12, it shall provide prompt written notice thereof to the Borrower, through the Administrative Agent, certifying (x) that one of the events described in 35 41 this Section 3.12 has occurred and describing in reasonable detail the nature of such event, (y) as to the increased cost or reduced amount resulting from such event and (z) as to the additional amount demanded by such Lender and a reasonably detailed explanation of the calculation thereof. Such a certificate as to any additional amounts payable pursuant to this Section 3.12 submitted by such Lender, through the Administrative Agent, to the Borrower shall be conclusive and binding on the parties hereto in the absence of manifest error. This covenant shall survive the termination of this Credit Agreement and the payment of the Loans and all other amounts payable hereunder. Notwithstanding anything to the contrary contained herein, the Borrower shall not be required to make any payments to any Lender or the Administrative Agent pursuant to this Section relating to any period of time which is greater than 90 days prior to such Person's request for additional payment except for retroactive application of such law, rule or regulation, in which case the Borrower is required to make such payments so long as such Person makes a request therefor within 90 days after the public announcement of such retroactive application. 3.13 TAXES. (a) Except as provided below in this Section 3.13, all payments made by the Borrower under this Credit Agreement and any Notes shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any court, or governmental body, agency or other official, excluding taxes measured by or imposed upon the net income of any Lender or its applicable lending office, or any branch or affiliate thereof, and all franchise taxes, branch taxes, taxes on doing business or taxes on the capital or net worth of any Lender or its applicable lending office, or any branch or affiliate thereof, in each case imposed in lieu of net income taxes: (i) by the jurisdiction under the laws of which such Lender, applicable lending office, branch or affiliate is organized or is located, or in which its principal executive office is located, or any nation within which such jurisdiction is located or any political subdivision thereof; or (ii) by reason of any connection between the jurisdiction imposing such tax and such Lender, applicable lending office, branch or affiliate other than a connection arising solely from such Lender having executed, delivered or performed its obligations, or received payment under or enforced, this Credit Agreement or any Notes. If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder or under any Notes, (A) the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Credit Agreement and any Notes, provided, however, that the Borrower shall be entitled to deduct and withhold any Non-Excluded Taxes and shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof if such Lender fails to comply with the requirements of paragraph (b) of this Section 3.13 whenever any Non-Excluded Taxes are payable by the Borrower, and (B) as promptly as possible after requested the Borrower shall send to such Administrative Agent for its own account or for 36 42 the account of such Lender, as the case may be, a certified copy of an original official receipt received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Borrower shall indemnify the Administrative Agent and any Lender for any incremental Non-Excluded Taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this subsection shall survive the termination of this Credit Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Lender that is not incorporated under the laws of the United States of America or a state thereof shall: (i) (A) on or before the date of any payment by the Borrower under this Credit Agreement or Notes to such Lender, deliver to the Borrower and the Administrative Agent (x) two duly completed copies of United States Internal Revenue Service Form 1001 or 4224, or successor applicable form, as the case may be, certifying that it is entitled to receive payments under this Credit Agreement and any Notes without deduction or withholding of any United States federal income taxes and (y) an Internal Revenue Service Form W-8 or W-9, or successor applicable form, as the case may be, certifying that it is entitled to an exemption from United States backup withholding tax; (B) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower; and (C) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent; or (ii) in the case of any such Lender that is not a "bank" within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (A) represent to the Borrower (for the benefit of the Borrower and the Administrative Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) agree to furnish to the Borrower, on or before the date of any payment by the Borrower, with a copy to the Administrative Agent, two accurate and complete original signed copies of Internal Revenue Service Form W-8, or successor applicable form certifying to such Lender's legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 881(c) of the Internal Revenue Code with respect to payments to be made under this Credit Agreement and any Notes (and to deliver to the Borrower and the Administrative Agent two further copies of such form on or before the date it 37 43 expires or becomes obsolete and after the occurrence of any event requiring a change in the most recently provided form and, if necessary, obtain any extensions of time reasonably requested by the Borrower or the Administrative Agent for filing and completing such forms), and (C) agree, to the extent legally entitled to do so, upon reasonable request by the Borrower, to provide to the Borrower (for the benefit of the Borrower and the Administrative Agent) such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from withholding with respect to payments under this Credit Agreement and any Notes. Notwithstanding the above, if any change in treaty, law or regulation has occurred after the date such Person becomes a Lender hereunder which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Borrower and the Administrative Agent, then such Lender shall be exempt from such requirements. Each Person that shall become a Lender or a participant of a Lender pursuant to Section 11.3 shall, upon the effectiveness of the related transfer, be required to provide all of the forms, certifications and statements required pursuant to this subsection (b); provided that in the case of a participant of a Lender, the obligations of such participant of a Lender pursuant to this subsection (b) shall be determined as if the participant of a Lender were a Lender except that such participant of a Lender shall furnish all such required forms, certifications and statements to the Lender from which the related participation shall have been purchased. 3.14 COMPENSATION. The Borrower promises to indemnify each Lender and to hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Credit Agreement, (b) default by the Borrower in making any prepayment of a Eurodollar Loan after the Borrower has given a notice thereof in accordance with the provisions of this Credit Agreement and (c) the making of a prepayment of Eurodollar Loans on a day which is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to (i) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Loans provided for herein (excluding, however, the Applicable Percentage included therein, if any) minus (ii) the amount of interest (as reasonably determined by such Lender) which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. The agreements in this Section shall survive the termination of this Credit Agreement and the payment of the Loans and all other amounts payable hereunder. 38 44 3.15 SUBSTITUTION OF LENDER. If (a) the obligation of any Lender to make Eurodollar Loans has been suspended pursuant to Section 3.11 or (b) any Lender has demanded compensation under Section 3.9, 3.11, 3.12, 3.13 or 3.14, the Borrower shall have the right, with the assistance of the Administrative Agent, to seek a mutually satisfactory substitute lender or lenders. Any substitution under this Section 3.15 may be accomplished, at the Borrower's option, either (i) by the replaced Lender assigning its rights and obligations hereunder to a replacement lender or lenders pursuant to Section 11.3(b) at a mutually agreeable price or (ii) by the Borrower's prepaying all outstanding Loans from the replaced Lender and terminating such Lender's Commitment on a date specified in a notice delivered to the Administrative Agent and the replaced Lender at least three Business Days before the date so specified (and compensating such Lender for any resulting funding losses as provided in Section 3.14 but otherwise without premium or penalty) and concurrently a replacement Lender or Lenders assuming a Commitment in an amount equal to the Commitment being terminated and making Loans in the same aggregate amount and having the same maturity date or dates, respectively, as the Loans being prepaid, all pursuant to documents reasonably satisfactory to the Administrative Agent (and in the case of any document to be signed by the replaced Lender, reasonably satisfactory to such Lender). No such substitution shall relieve the Borrower of its obligations to compensate and/or indemnify the replaced Lender as required by Section 3.9, 3.11, 3.12, 3.13 or 3.14 with respect to the period before it is replaced and to pay all accrued interest, accrued fees and other amounts owing to the replaced Lender hereunder. 3.16 EVIDENCE OF DEBT. (a) Each Lender shall maintain an account or accounts evidencing each Loan made by such Lender to the Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Credit Agreement. Each Lender will make reasonable efforts to maintain the accuracy of its account or accounts and to promptly update its account or accounts from time to time, as necessary. (b) The Administrative Agent shall maintain the Register pursuant to Section 11.3(c), and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount, type and Interest Period of each such Loan hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable to each Lender hereunder, and (iii) the amount of any sum received by the Administrative Agent hereunder from or for the account of the Borrower and each Lender's share thereof, if any. The Administrative Agent will make reasonable efforts to maintain the accuracy of the subaccounts referred to in the preceding sentence and to promptly update such subaccounts from time to time, as necessary. (c) The entries made in the accounts, Register and subaccounts maintained pursuant to subsection (b) of this Section 3.16 (and, if consistent with the entries of the Administrative Agent, subsection (a)) shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such account, such Register, or such subaccount, as 39 45 applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay the Loans made by such Lender in accordance with the terms hereof. SECTION 4 GUARANTY 4.1 GUARANTY OF PAYMENT. Subject to Section 4.7 below, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Lender and the Administrative Agent the prompt payment of the Credit Party Obligations in full when due (whether at stated or extended maturity, as a mandatory prepayment, by acceleration or otherwise). This Guaranty is a guaranty of payment and not of collection and is a continuing guaranty and shall apply to all Credit Party Obligations whenever arising. 4.2 OBLIGATIONS UNCONDITIONAL. The obligations of the Guarantors hereunder are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Credit Documents or the Hedging Agreements, or any other agreement or instrument referred to therein, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Guarantor agrees that this Guaranty may be enforced by the Lenders without the necessity at any time of resorting to or exhausting any other security or collateral and without the necessity at any time of having recourse to the Notes or any other of the Credit Documents or any collateral, if any, hereafter securing the Credit Party Obligations or otherwise and each Guarantor hereby waives the right to require the Lenders to proceed against the Borrower or any other Person (including a co-guarantor) or to require the Lenders to pursue any other remedy or enforce any other right. Each Guarantor further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor of the Credit Party Obligations for amounts paid under this Guaranty until such time as the Lenders (and any Affiliates of Lenders entering into Hedging Agreements) have been paid in full, all Commitments under the Credit Agreement have been terminated and no Person or Governmental Authority shall have any right to request any return or reimbursement of funds from the Lenders in connection with monies received under the Credit Documents. Each Guarantor further agrees that nothing contained herein shall prevent the Lenders from suing on the Notes or any of the other Credit Documents or any of the Hedging Agreements or foreclosing its security interest in or Lien on any collateral, if any, securing the Credit Party Obligations or from exercising any other rights available to it under this Credit Agreement, the Notes, any other of the Credit Documents, or any other instrument of security, if any, and the exercise of any of the aforesaid rights and the completion of any foreclosure proceedings shall not constitute a discharge of any Guarantor's obligations hereunder; it being the purpose and intent of each Guarantor that its obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. Neither any Guarantor's obligations under this 40 46 Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever by an impairment, modification, change, release or limitation of the liability of the Borrower or by reason of the bankruptcy or insolvency of the Borrower. Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Credit Party Obligations and notice of or proof of reliance of by the Administrative Agent or any Lender upon this Guaranty or acceptance of this Guaranty. The Credit Party Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty. All dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantors further agree to all rights of set-off as set forth in Section 11.2. 4.3 MODIFICATIONS. Each Guarantor agrees that (a) the time or place of payment of the Credit Party Obligations may be changed or extended, in whole or in part, to a time certain or otherwise, and may be renewed or accelerated, in whole or in part; (b) the Borrower and any other party liable for payment under the Credit Documents may be granted indulgences generally; (c) any of the provisions of the Notes or any of the other Credit Documents may be modified, amended or waived; (d) any party (including any co-guarantor) liable for the payment thereof may be granted indulgences or be released; (e) the Maturity Date may be extended; and (f) any deposit balance for the credit of the Borrower or any other party liable for the payment of the Credit Party Obligations or liable upon any security therefor may be released, in whole or in part, at, before or after the stated, extended or accelerated maturity of the Credit Party Obligations, all without notice to or further assent by such Guarantor, which shall remain bound thereon, notwithstanding any such exchange, compromise, surrender, extension, renewal, acceleration, modification, indulgence or release. 4.4 WAIVER OF RIGHTS. Each Guarantor expressly waives to the fullest extent permitted by applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of all extensions of credit to the Borrower by the Lenders; (b) presentment and demand for payment or performance of any of the Credit Party Obligations; (c) protest and notice of dishonor or of default (except as specifically required in the Credit Agreement) with respect to the Credit Party Obligations or with respect to any security therefor; (d) notice of the Lenders obtaining, amending, substituting for, releasing, waiving or modifying any security interest, lien or encumbrance, if any, hereafter securing the Credit Party Obligations, or the Lenders' subordinating, compromising, discharging or releasing such security interests, liens or encumbrances, if any; (e) all other notices to which such Guarantor might otherwise be entitled; and (f) demand for payment under this Guaranty. 4.5 REINSTATEMENT. The obligations of the Guarantors under this Section 4 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Credit Party Obligations is rescinded or must be otherwise restored by any holder of any of the 41 47 Credit Party Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses (including, without limitation, reasonable fees of counsel) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law. 4.6 REMEDIES. The Guarantors agree that, as between the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Credit Party Obligations may be declared to be forthwith due and payable as provided in Section 9 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 9) notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing such Credit Party Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or such Credit Party Obligations being deemed to have become automatically due and payable), such Credit Party Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors. 4.7 LIMITATION OF GUARANTY. Notwithstanding any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of any Guarantor shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code). 4.8 RIGHTS OF CONTRIBUTION. The Credit Parties agree among themselves that, in connection with payments made hereunder, each Credit Party shall have contribution rights against the other Credit Parties as permitted under applicable law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of the Credit Parties under the Credit Documents and no Credit Party shall exercise such rights of contribution until all Credit Party Obligations have been paid in full and the Commitments terminated. 42 48 SECTION 5 CONDITIONS PRECEDENT 5.1 CLOSING CONDITIONS. The obligation of the Lenders to enter into this Credit Agreement and make the initial Extension of Credit is subject to satisfaction (or waiver by each of the Lenders) of the following conditions: (a) Executed Credit Documents. Receipt by the Administrative Agent of duly executed copies of: (i) this Credit Agreement; (ii) the Notes and (iii) all other Credit Documents, each in form and substance reasonably acceptable to the Administrative Agent and the Lenders; provided that receipt by the Administrative Agent of an executed signature page to this Credit Agreement from a Lender shall be deemed approval by such Lender of the form and substance of the Credit Documents. (b) Authority Documents. (i) Partnership Documents. With respect to each Credit Party that is a partnership or limited liability partnership (for the purposes hereof, each a "Partnership"), receipt by the Administrative Agent of the following: (A) Authorization. Authorization of the general partner(s) of such Partnership, as of the Closing Date, approving and adopting the Credit Documents to be executed by such Partnership and authorizing the execution and delivery thereof. (B) Partnership Agreements. Certified copies of the partnership agreement of such Partnership, together with all amendments thereto. (C) Certificates of Good Standing or Existence. Certificate of good standing or existence for such Partnership, issued as of a recent date by its state of organization and each other state where the failure to qualify or be in good standing would have or could be reasonably expected to have a Material Adverse Effect. (D) Incumbency. An incumbency certificate of the general partner(s) of such Partnership certified by a secretary or assistant secretary of such general partner to be true and correct as of the Closing Date. (ii) Corporate Documents. With respect to each Credit Party that is a corporation, (for the purposes hereof, each a "Corporation"), and with respect to each corporate entity acting, directly or indirectly, on behalf of a Credit Party that is a partnership, limited liability partnership or limited liability company (for the 43 49 purposes of this clause (ii), each a "Managing Person"), receipt by the Administrative Agent of the following: (A) Charter Documents. Copies of the articles or certificates of incorporation or other charter documents of each such Corporation or Managing Person, as applicable, certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation and certified by a secretary or assistant secretary of such Corporation or Managing Person, as applicable, to be true and correct as of the Closing Date. (B) Bylaws. A copy of the bylaws of each such Corporation or Managing Person, as applicable, certified by a secretary or assistant secretary of such Corporation or Managing Person, as applicable, to be true and correct as of the Closing Date. (C) Resolutions. Copies of resolutions of such Corporation's board of directors approving and adopting the Credit Documents to which it or the Person for whom it is acting is a party and the transactions contemplated therein and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of such Corporation or Managing Person, as applicable, to be true and correct and in full force and effect as of the Closing Date. (D) Good Standing. Copies of (A) certificates of good standing, existence or their equivalent with respect to such Corporation or Managing Person, as applicable, certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation and each other jurisdiction in which the failure to so qualify and be in good standing would have or could be reasonably expected to have a Material Adverse Effect and (B) to the extent available, a certificate indicating payment of all corporate franchise taxes certified as of a recent date by the appropriate governmental taxing authorities. (E) Incumbency. An incumbency certificate of such Corporation or Managing Person, as applicable, certified by an officer of such Corporation or Managing Person, as applicable, to be true and correct as of the Closing Date. (iii) Limited Liability Company Documents. With respect to each Credit Party that is a limited liability company (for the purposes hereof, each an "LLC") and with respect to any limited liability company acting, directly or indirectly, on behalf of a Credit Party (for the purposes of this clause (iii), each a "Managing Person"), receipt by the Administrative Agent of the following: 44 50 (A) Certificate of Formation. A copy of the certificate of formation of such LLC or Managing Person, as applicable, certified to be true and complete by the appropriate Governmental Authority of the state or jurisdiction of its formation and certified by the sole or managing member of such LLC or Managing Person, as applicable, to be true and correct as of the Closing Date. (B) LLC Agreement. A copy of the LLC Agreement of such LLC or Managing Person, as applicable, certified by the sole or managing member of such LLC or Managing Person, as applicable, to be true and correct as of the Closing Date. (C) Resolutions. Copies of resolutions of the sole or managing member of such LLC or Managing Person approving and adopting the Credit Documents to which it or the Person for whom it is acting is a party and the transactions contemplated therein and authorizing execution and delivery thereof. (D) Good Standing. Copies of certificates of good standing, existence or their equivalent with respect to such LLC or Managing Person, as applicable, certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of formation and each other jurisdiction in which the failure to so qualify and be in good standing would have or could be reasonably expected to have a Material Adverse Effect. (E) Incumbency. An incumbency certificate of such LLC or Managing Person certified by an officer of such LLC or Managing Person to be true and correct as of the Closing Date. (c) Opinion of Counsel. Receipt by the Administrative Agent of an opinion or opinions from legal counsel to the Credit Parties (which shall cover, among other things, authority, legality, validity, binding effect, and enforceability of the Credit Documents), reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and dated as of the Closing Date. (d) Financial Statements. Receipt by the Lenders of such financial information regarding the Credit Parties required to be delivered pursuant to Section 7.1 of each Existing Credit Agreement prior to the Closing Date. (e) Litigation. There shall not exist (i) any order, decree, judgment, ruling or injunction which prohibits or restrains the consummation of the transactions contemplated hereby or (ii) any pending (except as set forth on Schedule 6.11) or, to the knowledge of any Credit Party, threatened action, suit, investigation or proceeding against a Credit Party that would have or could be reasonably expected to have a Material Adverse Effect. 45 51 (f) Officer's Certificates. The Administrative Agent shall have received a certificate or certificates executed by an Authorized Officer of the Borrower as of the Closing Date stating that (i) the Borrower and each of its Subsidiaries are in compliance with all existing material financial obligations after giving effect to this Credit Agreement, (ii) no action, suit, investigation or proceeding is pending or, to the knowledge of any Credit Party, threatened in any court or before any arbitrator or governmental instrumentality that purports to affect the Borrower, any of its Subsidiaries or any transaction contemplated by the Credit Documents, if such action, suit, investigation or proceeding would have or could be reasonably expected to have a Material Adverse Effect, (iii) the financial statements and information delivered to the Administrative Agent on or before the Closing Date were prepared in good faith and in accordance with GAAP and (iv) immediately after giving effect to this Credit Agreement, the other Credit Documents and all the transactions contemplated herein and therein, including the initial Extensions of Credit hereunder (if any), to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Credit Documents are true and correct in all material respects, (C) the Credit Parties are in compliance with each of the financial covenants set forth in Section 7.2 (with calculations demonstrating same) and (D) each Credit Party is Solvent. (g) Material Adverse Effect. There shall not have occurred a Material Adverse Effect since March 31, 2000; it being understood and agreed that, for purposes of this Section 5.1(g), matters disclosed in the Borrower's Form 10-Q report for the fiscal quarter ending March 31, 2000, as filed with the U.S. Securities and Exchange Commission, shall not constitute a Material Adverse Effect. (h) Fees and Expenses. Payment by the Credit Parties of the fees and expenses owed by them to the Administrative Agent, the Lenders and BAS pursuant to the terms of Section 3.4 and of the Fee Letter. (i) Existing Credit Agreements. The Administrative Agent shall have received evidence that all documents executed or delivered in connection with the Existing Credit Agreements shall have been terminated and that all amounts owing in connection with the Existing Credit Agreements shall have been paid in full on or before the Effective Date. (j) Market Disruption. There shall not have occurred any material disruption of or a material adverse change in conditions in the financial, banking or capital markets which the Administrative Agent and BAS, in their reasonable discretion, deem material in connection with the syndication of this Credit Agreement. (k) Other. Receipt and satisfactory review by the Administrative Agent and its counsel of such other documents, instruments, agreements or information as reasonably and timely requested by the Administrative Agent, its counsel or any Lender, including, but not limited to, shareholder agreements, management agreements and information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real 46 52 estate leases, material contracts, debt agreements, property ownership, contingent liabilities and management of the Borrower and its Subsidiaries. 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT. In addition to the conditions precedent stated elsewhere herein, the Lenders shall not be obligated to make new Loans unless: (a) Notice. The Borrower shall have delivered (i) in the case of any new Revolving Loan, a Notice of Borrowing, duly executed and completed, by the time specified in Section 2.1 and (ii) in the case of any new Swingline Loan, a Swingline Loan Request, duly executed and completed, by the time specified in Section 2.2. (b) Representations and Warranties. The representations and warranties made by the Credit Parties in any Credit Document are true and correct in all material respects at and as if made as of such date except to the extent they expressly relate to an earlier date. (c) No Default. No Default or Event of Default shall exist or be continuing either prior to or after giving effect thereto. (d) Availability. Immediately after giving effect to the making of a Loan (and the application of the proceeds thereof), the sum of the Revolving Loans outstanding plus Swingline Loans outstanding plus the aggregate amount of secured Indebtedness incurred by the Credit Parties pursuant to Section 8.1(h) in excess of $100,000,000 shall not exceed the Revolving Committed Amount. The delivery of each Notice of Borrowing and each Swingline Loan Request shall constitute a representation and warranty by the Borrower of the correctness of the matters specified in subsections (b), (c) and (d) above. SECTION 6 REPRESENTATIONS AND WARRANTIES The Credit Parties hereby represent and warrant to the Administrative Agent and each Lender that: 6.1 FINANCIAL CONDITION. (a) The financial statements delivered to the Lenders prior to the Effective Date and pursuant to Section 7.1(a) and (b): (i) have been prepared in accordance with GAAP and (ii) present fairly the consolidated and consolidating (as applicable) financial condition, results of operations and cash flows of the Borrower and its Subsidiaries as of such date and for such periods. 47 53 (b) Since December 31, 1999, there has been no sale, transfer or other disposition by any Credit Party of any material part of the business or property of the Credit Parties taken as a whole, and no purchase or other acquisition by any of them of any business or property (including any Capital Stock of any other Person) material in relation to the consolidated financial condition of the Credit Parties taken as a whole, in each case which is not (i) reflected in the most recent financial statements delivered to the Lenders pursuant to Section 7.1 or in the notes thereto or (ii) otherwise permitted by the terms of this Credit Agreement and communicated to the Administrative Agent. 6.2 NO MATERIAL CHANGE. Since March 31, 2000, there has been no development or event relating to or affecting a Credit Party which has had or could be reasonably expected to have a Material Adverse Effect, other than the developments in the First Heights-related litigation described in Note 4 to the Borrower's condensed consolidated financial statements contained in its Form 10-Q report for the fiscal quarter ended March 31, 2000, as filed with the U.S. Securities and Exchange Commission. 6.3 ORGANIZATION AND GOOD STANDING. Each Credit Party (a) is a corporation, partnership or limited liability company duly organized, validly existing and in good standing under the laws of the state (or other jurisdiction) of its organization, (b) is duly qualified and in good standing as a foreign entity and authorized to do business in every jurisdiction unless the failure to be so qualified, in good standing or authorized would have or could be reasonably expected to have a Material Adverse Effect and (c) has the requisite power and authority to own its properties and to carry on its business as now conducted and as proposed to be conducted. 6.4 DUE AUTHORIZATION. Each Credit Party (a) has the requisite power and authority to execute, deliver and perform this Credit Agreement and the other Credit Documents to which it is a party and to incur the obligations herein and therein provided for and (b) is duly authorized to, and has been authorized by all necessary action, to execute, deliver and perform this Credit Agreement and the other Credit Documents to which it is a party. 6.5 NO CONFLICTS. Neither the execution and delivery of the Credit Documents, nor the consummation of the transactions contemplated therein, nor performance of and compliance with the terms and provisions thereof by such Credit Party will (a) violate or conflict with any provision of its articles or certificate of incorporation or bylaws, (b) violate, contravene or materially conflict with any Requirement of Law or any other law, regulation (including, without limitation, Regulation D, O, T, U or X), order, writ, judgment, injunction, decree or permit applicable to it, (c) violate, contravene or conflict with contractual provisions of, or cause an event of default under, any 48 54 indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound, the violation of which would have or could be reasonably expected to have a Material Adverse Effect, or (d) result in or require the creation of any Lien (other than those contemplated in or created in connection with the Credit Documents) upon or with respect to its properties. 6.6 CONSENTS. Except for consents, approvals and authorizations which have been obtained, no consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party in respect of any Credit Party is required in connection with the execution, delivery or performance of this Credit Agreement or any of the other Credit Documents by such Credit Party. 6.7 ENFORCEABLE OBLIGATIONS. This Credit Agreement and the other Credit Documents have been duly executed and delivered and constitute legal, valid and binding obligations of each Credit Party enforceable against such Credit Party in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or moratorium laws or similar laws relating to or affecting creditors' rights generally or by general equitable principles. 6.8 NO DEFAULT. No Credit Party is in default in any respect under any contract, lease, loan agreement, indenture, mortgage, security agreement or other agreement or obligation to which it is a party or by which any of its properties is bound which default would have or could be reasonably expected to have a Material Adverse Effect. No Default or Event of Default has occurred or exists except as previously disclosed in writing to the Lenders. 6.9 LIENS. The assets of the Credit Parties are not subject to any Liens other than Permitted Liens, which, individually or in the aggregate, would have or could be reasonably expected to have a Material Adverse Effect. 6.10 INDEBTEDNESS. The Credit Parties have no Indebtedness except (a) as disclosed in the financial statements referenced in Section 6.1, (b) as set forth on Schedule 6.10, and (c) as otherwise permitted by this Credit Agreement. 49 55 6.11 LITIGATION. Except as set forth on Schedule 6.11, there are no actions, suits or legal, equitable, arbitration or administrative proceedings, pending or, to the knowledge of any Credit Party, threatened against any Credit Party which, if adversely determined, would have or could be reasonably expected to have a Material Adverse Effect. 6.12 TAXES. Each Credit Party has filed, or caused to be filed, all material tax returns (federal, state, local and foreign) required to be filed and paid (a) all amounts of taxes shown thereon to be due and payable (including interest and penalties) and (b) all other taxes, fees, assessments and other governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles taxes) that are due and payable by it, except for such taxes (i) which are not yet delinquent or (ii) that are being contested in good faith and by proper proceedings, and against which adequate reserves are being maintained in accordance with GAAP. To the knowledge of the Credit Parties, there are no material tax assessments (including interest and penalties) claimed to be due against any of them by any Governmental Authority. 6.13 COMPLIANCE WITH LAW. Each Credit Party is in material compliance with all material Requirements of Law and all other material laws, rules, regulations, orders and decrees (including without limitation Environmental Laws) applicable to it, or to its properties. No Requirement of Law would cause or could be reasonably expected to cause a Material Adverse Effect. 6.14 ERISA. Except as would not have or be reasonably expected to have a Material Adverse Effect: (a) During the five-year period prior to the date on which this representation is made or deemed made: (i) no Termination Event has occurred, and, to the knowledge of the Credit Parties, no event or condition has occurred or exists as a result of which any Termination Event could reasonably be expected to occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as such term is defined in Section 302 of ERISA and Section 412 of the Code, whether or not waived, has occurred with respect to any Plan; (iii) each Plan has been maintained, operated, and funded in compliance with its own terms and in material compliance with the provisions of ERISA, the Code, and any other applicable federal or state laws; and (iv) no lien in favor of the PBGC or a Plan has arisen or is reasonably likely to arise on account of any Plan. (b) The actuarial present value of all "benefit liabilities" (within the meaning of Section 4001 of ERISA) under each Single Employer Plan (determined utilizing the actuarial assumptions used to fund such Plans), whether or not vested, did not, as of the last annual valuation date prior to the date on which this representation is made or deemed 50 56 made, exceed the fair market current value as of such date of the assets of such Plan allocable to such accrued liabilities. (c) Neither the Borrower, nor any of its Subsidiaries, nor any ERISA Affiliate has incurred, or, to the knowledge of such parties, are reasonably expected to incur, any withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower, nor any of its Subsidiaries, nor any ERISA Affiliate has received any notification pursuant to ERISA that any Multiemployer Plan is in reorganization (within the meaning of Section 4241 of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has been terminated (within the meaning of Title IV of ERISA), and, to the best knowledge of such parties, no Multiemployer Plan is reasonably expected to be in reorganization, insolvent, or terminated. (d) No nonexempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has occurred with respect to a Plan which has subjected or is reasonably expected to subject the Borrower or any of its Subsidiaries or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which the Borrower or any of its Subsidiaries or any ERISA Affiliate has agreed or is required to indemnify any person against any such liability. (e) The present value of the liability of the Borrower and its Subsidiaries and each ERISA Affiliate for post-retirement welfare benefits to be provided to their current and former employees under Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA), net of all assets under all such Plans allocable to such benefits, are reflected on the Financial Statements in accordance with FASB 106. (f) Each Plan which is a welfare plan (as defined in Section 3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code apply has been administered in material compliance with such sections. 6.15 SUBSIDIARIES. Set forth on Schedule 6.15 is a complete and accurate list of all Subsidiaries of each Credit Party and whether each such Person is a Material Subsidiary. Schedule 6.15 shall be updated by the Borrower within 120 days after the end of each calendar year and may be, but need not be, updated at any other time and from time to time by the Borrower by giving written notice thereof to the Administrative Agent. 6.16 USE OF PROCEEDS. The proceeds of the Loans hereunder will be used solely for the purposes specified in Section 7.10. No proceeds of the Loans hereunder have been or will be used for the Acquisition of another Person unless the board of directors (or other comparable governing body) or stockholders, as appropriate, of such Person has approved such Acquisition. 51 57 6.17 GOVERNMENT REGULATION. (a) No proceeds of the Loans will be used, directly or indirectly, for the purpose of purchasing or carrying any "margin stock" within the meaning of Regulation U, or for the purpose of purchasing or carrying or trading in any securities. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to in Regulation U. No Indebtedness being reduced or retired out of the proceeds of the Loans was or will be incurred for the purpose of purchasing or carrying any margin stock within the meaning of Regulation U or any "margin security" within the meaning of Regulation T. "Margin stock" within the meaning of Regulation U does not constitute more than 25% of the value of the consolidated assets of the Credit Parties and their Subsidiaries. None of the transactions contemplated by the Credit Documents (including, without limitation, the direct or indirect use of the proceeds of the Loans) will violate or result in a violation of (i) the Securities Act or (ii) the Exchange Act. (b) No Credit Party is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940, each as amended. In addition, no Credit Party is (i) an "investment company" registered or required to be registered under the Investment Company Act of 1940, as amended, and is not controlled by an "investment company", or (ii) a "holding company", or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended. (c) No director, executive officer or principal shareholder of any Credit Party is a director, executive officer or principal shareholder of any Lender. For the purposes hereof the terms "director", "executive officer" and "principal shareholder" (when used with reference to any Lender) have the respective meanings assigned thereto in Regulation O. 6.18 ENVIRONMENTAL MATTERS. Except as would not have or could not be reasonably expected to have a Material Adverse Effect: (a) Each of the Real Properties and all operations at the Real Properties are in compliance with all applicable Environmental Laws, and there is no violation of any Environmental Law with respect to the Real Properties or the businesses operated by the Credit Parties (the "Businesses"), and there are no conditions relating to the Businesses or Real Properties that would reasonably be expected to give rise to liability under any applicable Environmental Laws. 52 58 (b) No Credit Party has received any written notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding Hazardous Materials or compliance with Environmental Laws with regard to any of the Real Properties or the Businesses, nor, to the knowledge of a Credit Party, is any such notice being threatened. (c) Hazardous Materials have not been transported or disposed of from the Real Properties, or generated, treated, stored or disposed of at, on or under any of the Real Properties or any other location, in each case by, or on behalf or with the permission of, a Credit Party in a manner that would give rise to liability under any applicable Environmental Laws. (d) No judicial proceeding or governmental or administrative action is pending or, to the knowledge of a Credit Party, threatened under any Environmental Law to which a Credit Party is or will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to a Credit Party, the Real Properties or the Businesses. (e) There has been no release (including, without limitation, disposal) or threat of release of Hazardous Materials at or from the Real Properties, or arising from or related to the operations of a Credit Party in connection with the Real Properties or otherwise in connection with the Businesses where such release constituted a violation of, or would give rise to liability under, any applicable Environmental Laws. (f) None of the Real Properties contains, or has previously contained, any Hazardous Materials at, on or under the Real Properties in amounts or concentrations that, if released, constitute or constituted a violation of, or could give rise to liability under, Environmental Laws. (g) No Credit Party has assumed any liability of any Person (other than another Credit Party or Subsidiary thereof) under any Environmental Law. 6.19 INTELLECTUAL PROPERTY. Each Credit Party owns, or has the legal right to use, all patents, trademarks, service marks, tradenames, copyrights, licenses, technology, know-how, processes and other rights (the "Intellectual Property"), free from burdensome restrictions, that are necessary for the operation of their respective businesses as presently conducted and as proposed to be conducted other than those the absence of which would not cause or could not reasonably be expected to cause a Material Adverse Effect. Except as would not have or could not be reasonably expected to have a Material Adverse Effect, (a) no holding, decision or judgment has been rendered by any Governmental Authority which would limit, cancel or question the 53 59 validity of any Intellectual Property and (b) no action or proceeding is pending that seeks to limit, cancel or question the validity of any Intellectual Property or which, if adversely determined, would have a material adverse effect on the value of any Intellectual Property. 6.20 SOLVENCY. Each Credit Party is, and after consummation of the transactions contemplated by this Credit Agreement will be, Solvent. 6.21 INVESTMENTS. All Investments of each Credit Party are (a) as set forth on Schedule 6.21(b) or (b) Permitted Investments. 6.22 DISCLOSURE. Neither this Credit Agreement nor any other Credit Document or financial statement delivered to the Administrative Agent or the Lenders by or on behalf of any Credit Party in connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein or herein, taken as a whole, not misleading. 6.23 LICENSES, ETC. Except as would not have or could not be reasonably expected to have a Material Adverse Effect, the Credit Parties have obtained and hold in full force and effect, all material franchises, licenses, permits, certificates, authorizations, qualifications, accreditations, easements, rights of way and other rights, consents and approvals which are necessary for the operation of their respective businesses as presently conducted. 6.24 BURDENSOME RESTRICTIONS. No Credit Party is a party to any agreement or instrument or subject to any other obligation or any charter or corporate restriction or any provision of any Requirement of Law which, individually or in the aggregate, would have or could be reasonably expected to have a Material Adverse Effect. 6.25 LABOR CONTRACTS AND DISPUTES. Except as disclosed on Schedule 6.25, (a) there is no collective bargaining agreement or other labor contract covering employees of any Credit Party; (b) no union or other labor organization is seeking to organize, or be recognized as, a collective bargaining unit of employees of any Credit Party; and (c) there is no pending or, to any Credit Party's knowledge, threatened strike, work stoppage, material unfair labor practice claim or other material labor dispute against or affecting any Credit Party or its employees which, individually or in the aggregate, would have or could be reasonably expected to have a Material Adverse Effect. 54 60 6.26 BROKER'S FEES. No Credit Party will pay or agree to pay, or reimburse any other Person with respect to, any finder's, broker's, investment banking or other similar fee in connection with any of the transactions contemplated under the Credit Documents. SECTION 7 AFFIRMATIVE COVENANTS Each Credit Party hereby covenants and agrees that so long as this Credit Agreement is in effect and until the Loans, together with interest and fees and other obligations then due and payable hereunder, have been paid in full (other than any such obligations which by the terms thereof are stated to survive termination of the Credit Documents) and the Commitments hereunder shall have terminated: 7.1 INFORMATION COVENANTS. The Credit Parties will furnish, or cause to be furnished, to the Administrative Agent and each of the Lenders: (a) Annual Financial Statements. As soon as available, and in any event within 120 days after the close of each fiscal year of the Borrower, a consolidated and consolidating balance sheet and income statement of the Borrower and its Subsidiaries, as of the end of such fiscal year, together with related consolidated and consolidating statements of operations, retained earnings, shareholders equity and cash flows for such fiscal year, setting forth in comparative form consolidated and consolidating figures for the preceding fiscal year, all such financial information described above to be in reasonable form and detail and audited by independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent and whose opinion shall be to the effect that such financial statements have been prepared in accordance with GAAP (except for changes with which such accountants concur) and shall not be limited as to the scope of the audit or qualified in any manner, except for qualifications resulting from changes in GAAP and required or approved by the Borrower's independent certified public accountants. It is specifically understood and agreed that failure of the annual financial statements to be accompanied by an opinion of such accountants in form and substance as provided herein shall constitute an Event of Default hereunder. (b) Quarterly Statements. As soon as available, and in any event within 60 days after the close of each fiscal quarter (other than the fourth fiscal quarter, in which case 120 days after the end thereof) of 55 61 each fiscal year of the Borrower, a consolidated and consolidating balance sheet and income statement of the Borrower and its Subsidiaries, as of the end of such quarter, together with related consolidated and consolidating statements of operations, retained earnings, shareholders' equity and cash flow for such quarter, in each case setting forth in comparative form consolidated and consolidating figures for the corresponding period of the preceding fiscal year, all such financial information described above to be in reasonable form and detail and reasonably acceptable to the Administrative Agent and accompanied by a certificate of the chief financial officer of the Borrower to the effect that such consolidated and consolidating statements are true and correct and have been prepared in accordance with GAAP, subject to changes resulting from audit and normal year-end audit adjustments. (c) Officer's Certificate. At the time of delivery of the financial statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate of an Authorized Officer of the Borrower substantially in the form of Exhibit 7.1(c), (i) demonstrating compliance with the financial covenants contained in Section 7.2 by calculation thereof as of the end of each such period, (ii) calculating the Interest Coverage Ratio of the Borrower and its Subsidiaries for the twelve month period ending on the date of such financial statements, (iii) demonstrating compliance with any other terms of this Credit Agreement as requested by the Administrative Agent and (iv) stating that no Default or Event of Default exists, or if any Default or Event of Default does exist, specifying the nature and extent thereof and what action the Borrower proposes to take with respect thereto. If necessary, the Borrower shall deliver financial statements prepared in accordance with GAAP as of the Closing Date, to the extent GAAP has changed since the Closing Date, in order to show compliance with the terms of this Credit Agreement, including Section 7.2. In addition, at the time of any Investment pursuant to clause (j) of the definition of Permitted Investments in excess of $10,000,000, a certificate of an Authorized Officer of the Borrower stating that after giving effect to such Investment on a pro forma basis no Default or Event of Default will exist or be continuing as a result of such Investment. (d) Reports. Promptly upon transmission or receipt thereof, (a) copies of any public filings and registrations with, and reports to or from, the Securities and Exchange Commission, or any successor agency, and copies of all financial statements, proxy statements, notices and reports as the Borrower or any of its Subsidiaries shall send to its shareholders generally and (b) upon the written request of the Administrative Agent, all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or authorities concerning environmental, health or safety matters. (e) Notices. Upon an executive officer of a Credit Party obtaining knowledge thereof, the Borrower will give written notice to the Administrative Agent (a) immediately of the occurrence of an event or condition consisting of a Default or Event of Default, specifying the nature and existence thereof and what action the Credit Parties propose to take with respect thereto, and (b) promptly, but in any event within five Business Days, after 56 62 the occurrence of any of the following with respect to any Credit Party: (i) the pendency or commencement of any litigation, arbitral or governmental proceeding against a Credit Party which if adversely determined would have or could be reasonably expected to have a Material Adverse Effect, (ii) the institution of any proceedings against a Credit Party with respect to, or the receipt of written notice by such Person of potential liability or responsibility for violation, or alleged violation, of any federal, state or local law, rule or regulation (including but not limited to, Environmental Laws), the violation of which would have or could be reasonably expected to have a Material Adverse Effect, (iii) the occurrence of an event or condition which shall constitute a default or event of default under any Indebtedness of a Credit Party in excess of $10,000,000, other than Non-Recourse Land Financing, or (iv) any loss of or damage to any property of a Credit Party or the commencement of any proceeding for the condemnation or other taking of any property of a Credit Party having a value of $10,000,000 or more. (f) ERISA. Upon any of the Credit Parties or any ERISA Affiliate obtaining knowledge thereof, the Borrower will give written notice to the Administrative Agent promptly (and in any event within two Business Days) of: (i) any event or condition, including, but not limited to, any Reportable Event, that constitutes, or might reasonably lead to, a Termination Event; (ii) with respect to any Multiemployer Plan, the receipt of notice as prescribed in ERISA or otherwise of any withdrawal liability assessed against the Credit Parties or any of their ERISA Affiliates, or of a determination that any Multiemployer Plan is in reorganization or insolvent (both within the meaning of Title IV of ERISA); (iii) the failure to make full payment on or before the due date (including extensions) thereof of all amounts which a Credit Party or any ERISA Affiliates is required to contribute to each Plan pursuant to its terms and as required to meet the minimum funding standard set forth in ERISA and the Code with respect thereto; or (iv) any change in the funding status of any Plan that would have or could be reasonably expected to have a Material Adverse Effect; together with a description of any such event or condition or a copy of any such notice and a statement by the principal financial officer of the Borrower briefly setting forth the details regarding such event, condition, or notice, and the action, if any, which has been or is being taken or is proposed to be taken by the Credit Parties with respect thereto. Promptly upon request, a Credit Party shall furnish the Administrative Agent and each of the Lenders with such additional information concerning any Plan as may be reasonably requested, including, but not limited to, copies of each annual report/return (Form 5500 series), as well as all schedules and attachments thereto required to be filed with the Department of Labor and/or the Internal Revenue Service pursuant to ERISA and the Code, respectively, for each "plan year" (within the meaning of Section 3(39) of ERISA). (g) Environmental. (i) Subsequent to a notice from any Governmental Authority where the subject matter of such notice would reasonably cause concern or during the existence of an Event of Default, and upon the written request of the Administrative Agent, the Credit Parties will furnish or cause to be furnished to the Administrative 57 63 Agent, at the Credit Parties' expense, a report of an environmental assessment of reasonable scope, form and depth, including, where appropriate, invasive soil or groundwater sampling, by a consultant reasonably acceptable to the Administrative Agent addressing the subject of such notice or, if during the existence of an Event of Default, regarding any release or threat of release of Hazardous Materials on any Real Property and the compliance by the Credit Parties with Environmental Laws. If the Credit Parties fail to deliver such an environmental assessment within sixty (60) days after receipt of such written request, then the Administrative Agent may arrange for same, and the Credit Parties hereby grant to the Administrative Agent and its representatives access to the Real Properties and a license of a scope reasonably necessary to undertake such an assessment (including, where appropriate, invasive soil or groundwater sampling). The reasonable cost of any assessment arranged for by the Administrative Agent pursuant to this provision will be payable by the Credit Parties on demand. (ii) Each Credit Party will conduct and complete all investigations, studies, sampling and testing and all remedial, removal and other actions necessary to address all Hazardous Materials on, from, or affecting any Real Property to the extent necessary to be in compliance with all Environmental Laws and all other applicable federal, state, and local laws, regulations, rules and policies and with the orders and directives of all Governmental Authorities exercising jurisdiction over such Real Property to the extent any failure would have or could be reasonably expected to have a Material Adverse Effect. (h) Other Information. As soon as available and in any event within 60 days of each fiscal quarter (or within 120 days of the fourth fiscal quarter), a "Land Report" and a "Consolidated Sales and Construction Activity Report" and with reasonable promptness upon any request, such other information regarding the business, properties or financial condition of the Credit Parties as the Administrative Agent or the Lenders may reasonably request; provided that the Borrower may require that prior to distribution of such information to a Lender, such Lender shall have executed and delivered to the Borrower a confidentiality agreement in form and substance reasonably satisfactory to the Borrower and such Lender. 7.2 FINANCIAL COVENANTS. (a) Debt to Capitalization Ratio. As of the last day of each fiscal quarter of the Borrower (beginning with the fiscal quarter ending September 30, 2000), the Debt to Capitalization Ratio shall be less than or equal to 0.50 to 1.0. (b) Tangible Net Worth. As of the last day of each fiscal quarter of the Borrower (beginning with the fiscal quarter ending September 30, 2000), Tangible Net Worth shall be greater than or equal to the sum of (i) $800 million, plus (ii) 50% of the cumulative Net Income (without deduction for losses) earned for each completed fiscal quarter subsequent to March 31, 2000 to the date of determination. 58 64 7.3 PRESERVATION OF EXISTENCE AND FRANCHISES. Except as permitted by Section 8.4, each of the Credit Parties will do all things necessary to preserve and keep in full force and effect its (a) existence, rights and franchises and (b) authority, unless failure to preserve and keep in full force and effect its authority would not have or could not be reasonably expected to have a Material Adverse Effect. 7.4 BOOKS AND RECORDS. Each of the Credit Parties will keep complete and accurate books and records of its transactions in accordance with GAAP (including the establishment and maintenance of appropriate reserves). 7.5 COMPLIANCE WITH LAW. Each of the Credit Parties will materially comply with all material laws, rules, regulations and orders, and all applicable material restrictions imposed by all Governmental Authorities, applicable to it and its property (including, without limitation, Environmental Laws). 7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS. Each of the Credit Parties will pay, settle or discharge (a) all taxes, assessments and governmental charges or levies imposed upon it, or upon its income or profits, or upon any of its properties, before they shall become delinquent, (b) all lawful claims (including claims for labor, materials and supplies) which, if unpaid, might give rise to a Lien upon any of its properties, and (c) all of its other Indebtedness as it shall become due (to the extent such repayment is not otherwise prohibited by this Credit Agreement); provided, however, that a Credit Party shall not be required to pay any such tax, assessment, charge, levy, claim or Indebtedness which is being contested in good faith by appropriate proceedings and as to which adequate reserves therefor have been established in accordance with GAAP, unless the failure to make any such payment (i) would give rise to an immediate right to foreclose or collect on a Lien securing such amounts or (ii) would have or could be reasonably expected to have a Material Adverse Effect. 7.7 INSURANCE. Each of the Credit Parties will at all times maintain in full force and effect insurance (including worker's compensation insurance, liability insurance, casualty insurance and business interruption insurance) from insurance companies of recognized national standing, in such amounts, covering such risks and liabilities and with such deductibles or self-insurance retentions as are in accordance with normal industry practice. 59 65 7.8 MAINTENANCE OF PROPERTY. Each of the Credit Parties will maintain and preserve its properties, equipment and other assets in good repair, working order and condition, normal wear and tear excepted, and will make, or cause to be made, in such properties and equipment from time to time all repairs, renewals, replacements, extensions, additions, betterments and improvements thereto as may be needed or proper, to the extent and in the manner customary for companies in similar businesses, unless the failure to do so would not have or could not be reasonably expected to have a Material Adverse Effect. 7.9 PERFORMANCE OF OBLIGATIONS. Each of the Credit Parties will perform in all material respects all of its obligations under the terms of all material agreements, indentures, mortgages, security agreements or other debt instruments to which it is a party or by which it or its property is bound, unless the failure to do so would not have or could not be reasonably expected to have a Material Adverse Effect. 7.10 USE OF PROCEEDS. The Credit Parties will use the proceeds/availability of the Loans solely (a) to repay Indebtedness owing under the Existing Credit Agreements, (b) to provide working capital for the Credit Parties and (c) for general corporate purposes of the Credit Parties, including money market borrowings and commercial paper backup. 7.11 AUDITS/INSPECTIONS. Upon reasonable notice and during normal business hours, each Credit Party will permit representatives appointed by the Administrative Agent, including, without limitation, independent accountants, agents, attorneys and appraisers, to visit and inspect such Credit Party's property, including its books and records, its accounts receivable and inventory, its facilities and its other business assets, and to make photocopies or photographs thereof and to write down and record any information such representative obtains and shall permit the Administrative Agent or its representatives to investigate and verify the accuracy of information provided to the Lenders. 7.12 ADDITIONAL CREDIT PARTIES. At the time any Person becomes a Material Subsidiary of a Credit Party, the Borrower shall so notify the Administrative Agent and promptly thereafter (but in any event within 30 days after the date thereof or within such longer period of time as agreed to by the Administrative Agent) shall cause such Person to (a) execute a Joinder Agreement in substantially the same form as Exhibit 7.12 and (b) deliver to the Administrative Agent such other documentation as the Administrative Agent may reasonably request, including, without limitation, certified copies of resolutions and other corporate, limited liability company or partnership documents and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the Joinder Agreement executed by such Person), all in form, 60 66 content and scope reasonably satisfactory to the Administrative Agent. The Administrative Agent and the Lenders agree that upon any Subsidiary ceasing to be a Material Subsidiary, upon receipt by the Administrative Agent of evidence thereof, the Administrative Agent shall execute, at the Borrower's expense, such release documentation as is necessary to release such Subsidiary from its Guaranty Obligations hereunder and such Subsidiary shall no longer be a Guarantor. SECTION 8 NEGATIVE COVENANTS Each Credit Party hereby covenants and agrees that so long as this Credit Agreement is in effect and until the Loans, together with interest, fees and other obligations then due and payable hereunder, have been paid in full (other than any such obligations which by the terms thereof are stated to survive termination of the Credit Documents) and the Commitments hereunder shall have terminated: 8.1 INDEBTEDNESS. No Credit Party will contract, create, incur, assume or permit to exist any Indebtedness, except: (a) Indebtedness arising under this Credit Agreement and the other Credit Documents; (b) Indebtedness existing as of the Closing Date as referenced in Section 6.10 (and renewals, refinancings, replacements or extensions thereof on terms and conditions no more favorable, in the aggregate, to the applicable creditor than such existing Indebtedness and in a principal amount not in excess of that outstanding as of the date of such renewal, refinancing, replacement or extension); (c) Indebtedness in respect of current accounts payable and accrued expenses incurred in the ordinary course of business and to the extent not current, accounts payable and accrued expenses that are subject to bona fide dispute; (d) Indebtedness owing by a Credit Party to another Credit Party; (e) Indebtedness arising from Hedging Agreements entered into in the ordinary course of business and not for speculative purposes; (f) Indebtedness arising from judgments that do not cause an Event of Default; (g) secured Indebtedness in connection with Non-Recourse Land Financing existing on the Closing Date and Non-Recourse Land Financing with respect to real property acquired after the Closing Date. 61 67 (h) other secured Indebtedness up to $200,000,000, in the aggregate, at any one time outstanding; provided that for each dollar of secured Indebtedness incurred in excess of $100,000,000, as permitted under this Section 8.1(h), availability under the Revolving Committed Amount shall be reduced by one dollar; and (i) other unsecured Indebtedness so long as, after giving effect thereto, the Borrower is in compliance with the financial covenants set forth in Section 7.2. 8.2 LIENS. No Credit Party will contract, create, incur, assume or permit to exist any Lien with respect to any of its property or assets of any kind (whether real or personal, tangible or intangible), whether now owned or after acquired, except for Permitted Liens. 8.3 NATURE OF BUSINESS. No Credit Party will materially alter the character of its business from that conducted as of the Closing Date or engage in any business other than the business conducted as of the Closing Date and activities which are substantially similar or related thereto or logical extensions thereof. 8.4 CONSOLIDATION AND MERGER. No Credit Party will enter into any transaction of merger or consolidation or liquidate, wind up or dissolve itself; provided that a Credit Party may merge or consolidate with or into another Person if the following conditions are satisfied: (a) the Administrative Agent is given prior written notice of such action; (b) the Person formed by such consolidation or into which such Credit Party is merged shall either (i) be a Credit Party or (ii) expressly assume in writing all of the obligations of a Credit Party under the Credit Documents; provided that if the transaction is between the Borrower and another Person, the Borrower must be the surviving entity; (c) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (d) the Borrower delivers to the Administrative Agent an opinion of counsel stating that such consolidation or merger and any written agreement entered into in connection therewith, comply with this Section 8.4. 8.5 SALE OR LEASE OF ASSETS. No Credit Party will convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business or assets whether now owned or hereafter 62 68 acquired, including, without limitation, inventory, receivables, equipment, real property interests (whether owned or leasehold), and securities, other than (a) any inventory sold or otherwise disposed of in the ordinary course of business; (b) the sale, lease, transfer or other disposal by a Credit Party of any or all of its assets to another Credit Party; (c) obsolete, slow-moving, idle or worn-out assets no longer used or useful in its business; (d) the transfer of assets which constitute a Permitted Investment; (e) any Equity Issuance by the Borrower; (f) the sale, lease or sublease of real property interests in the ordinary course of business; (g) the sale, transfer or other disposal for fair market value of all or substantially all of the Capital Stock or assets of a Guarantor to a Person that is not a Credit Party; provided that (i) after giving effect to any such sale, transfer or other disposal, the Credit Parties shall be in compliance with all of the terms and conditions of this Credit Agreement and the other Credit Documents, including, without limitation, the terms of Section 7.12 and the definition of Material Subsidiary, (ii) the net cash proceeds from any such sale, transfer or other disposal shall be (A) first, applied to all outstanding Revolving Loans (first to Base Rate Loans and then to Eurodollar Loans and Index Rate Swingline Loans in direct order of Interest Period maturities) and (B) second, reinvested in the business of the Credit Parties or used by the Credit Parties in the ordinary course of business within 90 days after the closing of such transfer, sale or other disposal and (iii) promptly after the net cash proceeds from any such sale, transfer or other disposal have been so utilized, the Borrower shall deliver to the Administrative Agent a certificate executed by an Authorized Officer certifying on behalf of the Borrower (A) as to the amount of such net cash proceeds and (B) that such net cash proceeds have been reinvested in accordance with the terms of the foregoing clause (ii), and (h) other sales of assets in the ordinary course of business so long as, after giving effect thereto, the Borrower is in compliance with the financial covenants set forth in Section 7.2. 8.6 SALE AND LEASEBACK. No Credit Party will enter into any Sale and Leaseback Transaction, unless each of the following conditions is satisfied: (a) such Credit Party shall promptly give notice of such sale or transfer to the Administrative Agent; (b) the net proceeds of such sale or transfer are at least equal to the fair value (as determined in good faith by a resolution of such Credit Party's board of directors, a copy of which has been delivered by the Credit Party to the Administrative Agent) of the property which is the subject of such sale or transfer; and (c) such Credit Party shall apply, within 365 days after the effective date of such sale or transfer, or shall have committed within one year after such effective date to apply, an amount at least equal to the net proceeds of the sale or transfer of the property which is the subject of such sale or transfer to (A) the repayment of the Loans or (B) the repayment of other Indebtedness owing by any Credit Party or (C) the purchase of property by such Credit Party substantially similar to the property that was the subject of such sale or transfer or (D) in part to such repayment and in part to such purchase or property; provided, however, that if such Credit Party commits to apply an amount at least equal to the net proceeds of a sale or transfer to the repayment of the Loans, the repayment of other Indebtedness or the purchase of property, such commitment shall be made in a written instrument delivered by such Credit Party to the Administrative Agent and shall require such Credit Party to so apply said amount within 18 months after the effective date of such sale or transfer, and it shall constitute a breach of the provisions of this Section 8.6 if such Credit Party shall fail so to apply said amount in satisfaction of such commitment. 63 69 8.7 ADVANCES, INVESTMENTS AND LOANS. No Credit Party will make any Investments except for Permitted Investments. 8.8 RESTRICTED PAYMENTS. No Credit Party will, directly or indirectly, use proceeds of Loans to pay dividends or make any other distribution (excluding repurchases of shares of Capital Stock) upon any shares of its Capital Stock of any class. 8.9 TRANSACTIONS WITH AFFILIATES. No Credit Party will enter into any material transaction or series of transactions, whether or not in the ordinary course of business, with any officer, director, shareholder, Subsidiary or Affiliate other than on terms and conditions substantially as favorable as would be obtainable in a comparable arm's-length transaction with a Person other than an officer, director, shareholder, Subsidiary or Affiliate. 8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS. No Credit Party will (a) change its fiscal year or (b) in any manner that would reasonably be likely to adversely affect the rights of the Lenders, change its articles or certificate of incorporation or its bylaws, except as permitted by Section 8.4. 8.11 NO LIMITATIONS. No Credit Party will directly or indirectly, create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Person to (a) pay dividends or make any other distribution on any of such Person's Capital Stock, (b) pay any Indebtedness owed to any other Credit Party, (c) make loans or advances to any other Credit Party or (d) transfer any of its property to any other Credit Party, except for encumbrances or restrictions existing under or by reason of (i) customary non-assignment or net worth provisions in any lease governing a leasehold interest, (ii) any agreement or other instrument of a Person existing at the time it becomes a Subsidiary of a Credit Party; provided that such encumbrance or restriction is not applicable to any other Person, or any property of any other Person, other than such Person becoming a Subsidiary of a Credit Party and was not entered into in contemplation of such Person becoming a Subsidiary of a Credit Party, and (iii) this Credit Agreement and the other Credit Documents. 8.12 NO OTHER NEGATIVE PLEDGES. No Credit Party will enter into, assume or become subject to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon its properties or assets, whether 64 70 now owned or hereafter acquired, or requiring the grant of any security for such obligation if security is given for some other obligation except as set forth in the Credit Documents. 8.13 OTHER INDEBTEDNESS. No Credit Party will, if any Event of Default has occurred and is continuing or would be directly or indirectly caused as a result thereof, (a) with respect to any Indebtedness (other than the Indebtedness under the Credit Documents) of such Credit Party, shorten the final maturity or average life to maturity or require any payment to be made sooner than originally scheduled or increase the interest rate applicable thereto or change any subordination provision thereof or (b) make (or give any notice with respect thereto) any voluntary or optional payment or prepayment, redemption, acquisition for value or defeasance of (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Indebtedness (other than the Indebtedness under the Credit Documents) of such Credit Party. SECTION 9 EVENTS OF DEFAULT 9.1 EVENTS OF DEFAULT. An Event of Default shall exist upon the occurrence, and during the continuation, of any of the following specified events (each an "Event of Default"): (a) Payment. Any Credit Party shall default in the payment (i) when due of any principal of any of the Loans or (ii) within five Business Days of when due of any interest on the Loans or any fees or other amounts owing hereunder, under any of the other Credit Documents or in connection herewith. (b) Representations. Any representation, warranty or statement made or deemed to be made by any Credit Party herein, in any of the other Credit Documents, or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in any material respect on the date as of which it was made or deemed to have been made. (c) Covenants. Any Credit Party shall: (i) default in the due performance or observance of any term, covenant or agreement contained in Sections 7.2, 7.10 or 8.1 through 8.13 inclusive; (ii) default in the due performance or observance of any term, covenant or agreement contained in Sections 7.1, 7.3, 7.5 or 7.11 and such default shall continue unremedied for a period of five Business Days after the earlier of a Credit 65 71 Party becoming aware of such default or notice thereof given by the Administrative Agent; or (iii) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in subsections (a), (b) or (c)(i) of this Section 9.1) contained in this Credit Agreement and such default shall continue unremedied for a period of at least 30 days after the earlier of a Credit Party becoming aware of such default or written notice thereof given by the Administrative Agent. (d) Other Credit Documents. (i) Any Credit Party shall default in the due performance or observance of any term, covenant or agreement in any of the other Credit Documents and such default shall continue unremedied for a period of at least 30 days after the earlier of a Credit Party becoming aware of such default or written notice thereof given by the Administrative Agent, or (ii) any Credit Document shall fail to be in full force and effect or any Credit Party shall so assert or any Credit Document shall fail to give the Administrative Agent and the Lenders the security interests, liens, rights, powers and privileges purported to be created thereby. (e) Guaranties. The guaranty given by any Credit Party hereunder or by any Additional Credit Party hereafter or any provision thereof shall cease to be in full force and effect, or any Guarantor thereunder or any Person acting by or on behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations under such guaranty. (f) Bankruptcy, etc. The occurrence of any of the following: (i) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of any Credit Party or any of its Subsidiaries in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of any Credit Party or any of its Subsidiaries or for any substantial part of its property or ordering the winding up or liquidation of its affairs; or (ii) an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect is commenced against any Credit Party or any of its Subsidiaries and such petition remains unstayed and in effect for a period of 60 consecutive days; or (iii) any Credit Party or any of its Subsidiaries shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or any substantial part of its property or make any general assignment for the benefit of creditors; or (iv) any Credit Party or any of its Subsidiaries shall admit in writing its inability to pay its debts generally as they become due or any action shall be taken by such Person in furtherance of any of the aforesaid purposes. 66 72 (g) Defaults under Other Agreements. (i) A Credit Party shall default in the due performance or observance (beyond the applicable grace period with respect thereto) of any material obligation or condition of any contract or lease material to the Credit Parties taken as a whole to which it is a party or by which it or its property is bound; or (ii) With respect to any Indebtedness of a Credit Party the principal amount of which is in excess of $10 million (other than Indebtedness outstanding under this Credit Agreement and Non-Recourse Land Financing), (A) any such Credit Party shall (x) default in any payment (beyond the applicable grace period with respect thereto, if any) with respect to any such Indebtedness, or (y) default (after giving effect to any applicable grace period) in the observance or performance relating to such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event or condition shall occur or condition exist, the effect of which default or other event or condition is to cause the holder or holders of such Indebtedness (or trustee or agent on behalf of such holders) to cause (determined without regard to whether any notice or lapse of time is required) any such Indebtedness to become due prior to its stated maturity; (B) any such Indebtedness shall be declared due and payable, or required to be prepaid other than by a regularly scheduled required prepayment prior to the stated maturity thereof; or (C) any such Indebtedness shall mature and remain unpaid. (h) Judgments. Any judgment, order, or decree (including, without limitation, any judgment, order, or decree with respect to any litigation disclosed pursuant to the Credit Documents) shall be entered against any one or more of the Credit Parties involving a liability of $25 million or more (to the extent not paid or covered by insurance provided by a carrier who has acknowledged coverage and in any event not including any Non-Recourse Land Financing), and such judgment, order or decree (i) is the subject of any enforcement proceeding commenced by any creditor or (ii) shall continue unsatisfied, undischarged and unstayed for a period ending on the first to occur of (A) the last day on which such judgment, order or decree becomes final and unappealable or (B) 30 days. (i) ERISA. The occurrence of any of the following events or conditions: (A) any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA and Section 412 of the Code, whether or not waived, shall exist with respect to any Plan, or any Lien shall arise on the assets of any Credit Party, any of its Subsidiaries or any ERISA Affiliate in favor of the PBGC or a Plan; (B) a Termination Event shall occur with respect to a Single Employer Plan, which is, in the reasonable opinion of the Administrative Agent, likely to result in the termination of such Plan for purposes of Title IV of ERISA; (C) a Termination Event shall occur with respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the reasonable opinion of the Administrative Agent, likely to result in (i) the termination of such Plan for purposes of Title IV of ERISA, or (ii) any Credit Party, any of its Subsidiaries or any ERISA Affiliate incurring any liability in connection with a withdrawal from, reorganization of (within the meaning of Section 4241 of ERISA), or 67 73 insolvency (within the meaning of Section 4245 of ERISA) of such Plan; or (D) any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Credit Party, any of its Subsidiaries or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which any Credit Party, any of its Subsidiaries or any ERISA Affiliate has agreed or is required to indemnify any person against any such liability. (j) Ownership. There shall occur a Change of Control. 9.2 ACCELERATION; REMEDIES. Upon the occurrence and during the continuance of an Event of Default, and at any time thereafter unless and until such Event of Default has been waived in writing by the Required Lenders (or the Lenders as may be required hereunder), the Administrative Agent shall, upon the request and direction of the Required Lenders, by written notice to the Borrower, take the following actions without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against the Credit Parties, except as otherwise specifically provided for herein: (a) Termination of Commitments. Declare the Commitments terminated whereupon the Commitments shall be immediately terminated. (b) Acceleration of Loans. Declare the unpaid principal of and any accrued interest in respect of all Loans and any and all other indebtedness or obligations of any and every kind owing by a Credit Party to any of the Lenders hereunder to be due whereupon the same shall be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Credit Parties. (c) Enforcement of Rights. Enforce any and all rights and interests created and existing under the Credit Documents, including, without limitation, all rights and remedies against a Guarantor and all rights of set-off. Notwithstanding the foregoing, if an Event of Default specified in Section 9.1(f) shall occur, then the Commitments shall automatically terminate and all Loans, all accrued interest in respect thereof, all accrued and unpaid fees and other indebtedness or obligations owing to the Lenders hereunder shall immediately become due and payable without the giving of any notice or other action by the Administrative Agent or the Lenders, which notice or other action is expressly waived by the Credit Parties. Notwithstanding the fact that enforcement powers reside primarily with the Administrative Agent, each Lender has, to the extent permitted by law, a separate right of payment and shall be considered a separate "creditor" holding a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code or any other insolvency statute. 68 74 9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT. Notwithstanding any other provisions of this Credit Agreement, after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Administrative Agent or any Lender on account of amounts outstanding under any of the Credit Documents shall be paid over or delivered as follows: FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable attorneys' fees) of the Administrative Agent or any of the Lenders in connection with enforcing the rights of the Lenders under the Credit Documents; SECOND, to payment of any fees owed to the Administrative Agent or any Lender; THIRD, to the payment of all accrued interest payable to the Lenders hereunder and all other obligations (other than those obligations to be paid pursuant to clause "FOURTH" below) which shall have become due and payable under the Credit Documents and not repaid pursuant to clauses "FIRST" and "SECOND" above; FOURTH, to the payment of the outstanding principal amount of the Loans, pro rata as set forth below; and FIFTH, to the payment of the surplus, if any, to whomever may be lawfully entitled to receive such surplus. In carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category and (b) each of the Lenders shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans held by such Lender bears to the aggregate then outstanding Loans) of amounts available to be applied. SECTION 10 AGENCY PROVISIONS 10.1 APPOINTMENT. Each Lender hereby designates and appoints Bank of America as Administrative Agent of such Lender to act as specified herein and in the other Credit Documents, and each such Lender hereby authorizes the Administrative Agent, as the agent for such Lender, to take such action on its behalf under the provisions of this Credit Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated by the terms hereof and of the other Credit Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other Credit Documents, the Administrative Agent shall not have any duties or responsibilities except those expressly set 69 75 forth herein and therein or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Credit Agreement or any of the other Credit Documents, or shall otherwise exist against the Administrative Agent. The provisions of this Section are solely for the benefit of the Administrative Agent and the Lenders and none of the Credit Parties shall have any rights as a third party beneficiary of the provisions hereof. In performing its functions and duties under this Credit Agreement and the other Credit Documents, the Administrative Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for any Credit Party or any of its Subsidiaries. 10.2 DELEGATION OF DUTIES. The Administrative Agent may execute any of its duties hereunder or under the other Credit Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. 10.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection herewith or in connection with any of the other Credit Documents (except for its or such Person's own gross negligence or willful misconduct) or responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any of the Credit Parties contained herein or in any of the other Credit Documents or in any certificate, report, document, financial statement or other written or oral statement referred to or provided for in, or received by the Administrative Agent under or in connection herewith or in connection with the other Credit Documents, or enforceability or sufficiency therefor of any of the other Credit Documents, or for any failure of the Borrower to perform its obligations hereunder or thereunder. The Administrative Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Credit Agreement, or any of the other Credit Documents or for any representations, warranties, recitals or statements made herein or therein or made by the Borrower or any of its Subsidiaries in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Administrative Agent to the Lenders or by or on behalf of the Credit Parties to the Administrative Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Default or Event of Default or to inspect the properties, books or records of the Credit Parties. The Administrative Agent is not a trustee for the Lenders and owes no fiduciary duty to the Lenders. 70 76 10.4 RELIANCE ON COMMUNICATIONS. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to any of the Credit Parties, independent accountants and other experts selected by the Administrative Agent with reasonable care). The Administrative Agent may deem and treat each Lender as the owner of its interests hereunder for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent in accordance with Section 11.3(b). The Administrative Agent shall be fully justified in failing or refusing to take any action under this Credit Agreement or under any of the other Credit Documents unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Credit Documents in accordance with a request of the Required Lenders (or, to the extent specifically provided in Section 11.6, all the Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders (including their successors and assigns). 10.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or a Credit Party referring to the Credit Document, describing such Default or Event of Default and stating that such notice is a "notice of default." In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders and as is permitted by the Credit Documents. 10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender expressly acknowledges that neither the Administrative Agent, BAS nor any of their officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the Administrative Agent or any affiliate thereof hereinafter taken, including any review of the affairs of any Credit Party or any of its Subsidiaries, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent and BAS that it has, independently and without reliance upon the Administrative Agent or BAS or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties and made its own decision to make its Loans 71 77 hereunder and enter into this Credit Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or BAS or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Credit Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent and BAS shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Credit Parties which may come into the possession of the Administrative Agent, BAS or any of their officers, directors, employees, agents, attorneys-in-fact or affiliates. 10.7 INDEMNIFICATION. The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Commitments (or if the Commitments have expired or been terminated, in accordance with the respective principal amounts of outstanding Loans and Participation Interests of the Lenders), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including without limitation at any time following payment in full of the Credit Party Obligations) be imposed on, incurred by or asserted against the Administrative Agent in its capacity as such in any way relating to or arising out of this Credit Agreement or the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section shall survive the payment of the Credit Party Obligations and all other amounts payable hereunder and under the other Credit Documents. 10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrower or any of its Subsidiaries as though the Administrative Agent were not the Administrative Agent hereunder. With respect to the Loans made and all obligations owing to it, the Administrative Agent shall have the same rights and powers under this Credit Agreement as any Lender and may exercise the same as though they were 72 78 not the Administrative Agent, and the terms "Lender" and "Lenders" shall include the Administrative Agent in its individual capacity. 10.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, at any time, resign upon 20 days written notice to the Lenders. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 60 days after the notice of resignation, then the retiring Administrative Agent shall select a successor Administrative Agent, provided such successor is an Eligible Assignee. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations as the Administrative Agent, as appropriate, under this Credit Agreement and the other Credit Documents and the provisions of this Section 10.9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Credit Agreement. If no successor Administrative Agent has accepted appointment as Administrative Agent within 75 days after the retiring Administrative Agent's giving notice of resignation, the retiring Administrative Agent's resignation shall nevertheless become effective and the Lenders shall perform all duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Subject to the foregoing terms of this Section 10.9, there shall at all times be a Person or Persons serving as Administrative Agent hereunder. SECTION 11 MISCELLANEOUS 11.1 NOTICES. Except as otherwise expressly provided herein, all notices and other communications shall have been duly given and shall be effective (a) when delivered in writing, (b) when transmitted via telecopy (or other facsimile device) to the number set out below, (c) the Business Day following the day on which the same has been delivered prepaid (or on an invoice basis) to a reputable national overnight air courier service, or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case to the respective parties at the address or telecopy numbers set forth on Schedule 11.1, or at such other address as such party may specify by written notice to the other parties hereto. 11.2 RIGHT OF SET-OFF. In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence of an Event of Default and the 73 79 commencement of remedies described in Section 9.2, each Lender is authorized at any time and from time to time, without presentment, demand, protest or other notice of any kind (all of which rights being hereby expressly waived), to set-off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by such Lender (including, without limitation, branches, agencies or Affiliates of such Lender wherever located) to or for the credit or the account of any Credit Party or any of its Subsidiaries against the Credit Party Obligations of such Credit Party, irrespective of whether the Administrative Agent or the Lenders shall have made any demand hereunder and although such Credit Party Obligations may be contingent or unmatured, and any such set-off shall be deemed to have been made immediately upon the occurrence of an Event of Default even though such charge is made or entered on the books of such Lender subsequent thereto. The Credit Parties hereby agree that any Person purchasing a participation in the Loans and Commitments hereunder pursuant to Section 11.3(e) or 3.8 may exercise all rights of set-off with respect to its participation interest as fully as if such Person were a Lender hereunder. 11.3 BENEFIT OF AGREEMENT. (a) Generally. This Credit Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided that none of the Credit Parties may assign and transfer any of its interests (except as permitted by Section 8.4 or 8.5) without the prior written consent of the Lenders; and provided further that the rights of each Lender to transfer, assign or grant participations in its rights and/or obligations hereunder shall be limited as set forth below in this Section 11.3. (b) Assignments. Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Credit Agreement (including, without limitation, all or a portion of its Loans, its Notes, and its Commitments); provided, however, that: (i) except in the case of an assignment to another Lender, any such partial assignment shall be in an amount at least equal to $10,000,000 or an integral multiple of $1,000,000 in excess thereof; (ii) unless the assigning Lender is assigning all of its rights and obligations under this Credit Agreement, the assigning Lender shall retain a Commitment of not less than $10,000,000; (iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its rights and obligations under this Credit Agreement and the Notes; and (iv) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an assignment agreement in substantially 74 80 the form of Exhibit 11.3(b) (each an "Assignment Agreement"), together with a processing fee from the assignor or assignee of $3,500. Upon execution, delivery, and acceptance of such Assignment Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, rights, and benefits of a Lender hereunder and the assigning Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Credit Agreement. Upon the consummation of any assignment pursuant to this Section 11.3(b), the assignor, the Administrative Agent and the Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to the Borrower and the Administrative Agent certification as to exemption from deduction or withholding of taxes in accordance with Section 3.13. By executing and delivering an Assignment Agreement in accordance with this Section 11.3(b), the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and the assignee warrants that it is an Eligible Assignee; (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto or the financial condition of any Credit Party or any of its Subsidiaries or the performance or observance by any Credit Party of any of its obligations under this Credit Agreement, any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto; (C) such assignee represents and warrants that it is legally authorized to enter into such Assignment Agreement; (D) such assignee confirms that it has received a copy of this Credit Agreement, the other Credit Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement and the other Credit Documents; (F) such assignee appoints and authorizes the Administrative Agent to take such action on its behalf and to exercise such powers under this Credit Agreement or any other Credit Document as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto; and (G) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Credit Agreement and the other Credit Documents are required to be performed by it as a Lender. 75 81 (c) Register. The Administrative Agent shall maintain a copy of each Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Acceptance. Upon its receipt of an Assignment Agreement executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment Agreement has been completed and is in substantially the form of Exhibit 11.3(b) hereto, (i) accept such Assignment Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the parties thereto. (e) Participations. Each Lender may sell participations to one or more Persons in all or a portion of its rights, obligations or rights and obligations under this Credit Agreement (including all or a portion of its Commitments and its Loans); provided, however, that (i) such Lender's obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participant shall be entitled to the benefit of the yield protection provisions contained in Sections 3.9 through 3.14, inclusive, and the right of set-off contained in Section 11.2, (iv) the Borrower shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to its Loans and its Notes and to approve any amendment, modification, or waiver of any provision of this Credit Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on such Loans or Notes, extending any scheduled principal payment date or date fixed for the payment of interest on such Loans or Notes (other than as a result of the extension of the Maturity Date in accordance with the terms of Section 2.5), extending its Commitments or releasing all or substantially all of the Guarantors) and (v) such Lender shall provide written notice of any participation to the Borrower and the Administrative Agent. (f) Nonrestricted Assignments. Notwithstanding any other provision set forth in this Credit Agreement, any Lender may at any time assign and pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder. 76 82 (g) Information. Any Lender may furnish any information concerning the Borrower or any of its Subsidiaries in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 11.16. 11.4 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any of its Subsidiaries and the Administrative Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights and remedies provided herein are cumulative and not exclusive of any rights or remedies which the Administrative Agent or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or the Lenders to any other or further action in any circumstances without notice or demand. 11.5 PAYMENT OF EXPENSES; INDEMNIFICATION. The Credit Parties agree to: (a) pay all reasonable out-of-pocket costs and expenses of (i) the Administrative Agent and BAS in connection with (A) the negotiation, preparation, execution and delivery and administration of this Credit Agreement and the other Credit Documents and the documents and instruments referred to therein (including, without limitation, the reasonable fees and expenses of Moore & Van Allen, PLLC, special counsel to the Administrative Agent), and (B) any amendment, waiver or consent relating hereto and thereto including, but not limited to, any such amendments, waivers or consents resulting from or related to any work-out, renegotiation or restructure relating to the performance by the Credit Parties under this Credit Agreement and (ii) the Administrative Agent and the Lenders in connection with (A) enforcement of the Credit Documents and the documents and instruments referred to therein, including, without limitation, in connection with any such enforcement, the reasonable fees and disbursements of counsel for the Administrative Agent and each of the Lenders, and (B) any bankruptcy or insolvency proceeding of a Credit Party or any of its Subsidiaries and (b) indemnify the Administrative Agent, BAS, each Lender and each of their officers, directors, employees, representatives, Affiliates and agents from and hold each of them harmless against any and all losses, liabilities, claims, damages or expenses (including, without limitation, the reasonable fees and expenses of legal counsel (including the allocated cost of internal counsel) and settlement costs incurred by any of them as a result of, or arising out of, or in any way related to, or by reason of, any investigation, litigation or other proceeding (whether or not the Administrative Agent, BAS or any Lender is a party thereto) related to (i) the entering into and/or performance of any Credit Document or the use of proceeds of any Loans (including other Extensions of Credit) hereunder or the consummation of any other transactions contemplated in any Credit Document, including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any such investigation, litigation or other proceeding, (ii) any Environmental Claim, (iii) any claims for Non-Excluded Taxes (but 77 83 excluding in the case of (i), (ii) and (iii) above, any such losses, liabilities, claims, damages or expenses to the extent incurred by reason of gross negligence or willful misconduct on the part of the Person to be indemnified). 11.6 AMENDMENTS, WAIVERS AND CONSENTS. Subject to Section 11.16(b), neither this Credit Agreement nor any other Credit Document nor any of the terms hereof or thereof may be amended, changed, waived, discharged or terminated unless such amendment, change, waiver, discharge or termination is in writing and signed by the Required Lenders and the then Credit Parties; provided that no such amendment, change, waiver, discharge or termination shall without the consent of each Lender affected thereby: (a) extend the Maturity Date (other than with the consent of the Extension Required Lenders pursuant to Section 2.5); (b) reduce the rate or extend the time of payment of interest thereon or fees hereunder (it being understood and agreed that a waiver of the applicability of any post-default increase in interest rates shall not constitute a reduction in the rate of interest for purposes of this clause (b)); (c) reduce or waive the principal amount of any Loan; (d) increase or extend any Commitment of a Lender (it being understood and agreed that a waiver of any Default or Event of Default or a waiver of any mandatory reduction in the Commitments or any increase in the Revolving Committed Amount pursuant to Section 2.1(e) shall not constitute a change in the terms of any Commitment of any Lender); (e) except as the result of or in connection with a merger or other disposition of a Credit Party permitted under Section 8.4, (i) release the Borrower from its obligations under the Credit Documents or (ii) release any Credit Party that individually or, together with any other Credit Party previously released or to be released simultaneously therewith, cumulatively accounts for more than 5% of Tangible Net Worth from its obligations under the Credit Documents; (f) amend, modify or waive any provision of this Section 11.6 or Section 3.4(a), 3.4(b), 3.7, 3.8, 5.2, 9.1(a), 11.2, 11.3 or 11.5; (g) reduce any percentage specified in, or otherwise modify, the definition of Required Lenders set forth in Section 1.1; or (h) consent to the assignment or transfer by a Borrower or all or substantially all of the other Credit Parties of any of its or their rights and obligations under (or in respect of) the Credit Documents except as permitted thereby. 78 84 Notwithstanding the above, no provisions of Section 10 may be amended or modified without the consent of the Administrative Agent. No provision of Section 2.2 affecting the Swingline Loans may be amended without the consent of Bank of America. Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein and (y) the Required Lenders may consent to allow a Credit Party to use cash collateral in the context of a bankruptcy or insolvency proceeding. 11.7 COUNTERPARTS/TELECOPY. This Credit Agreement may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts by telecopy shall be as effective as an original and shall constitute a representation that an original will be delivered. 11.8 HEADINGS. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Credit Agreement. 11.9 DEFAULTING LENDER. Each Lender understands and agrees that if such Lender is a Defaulting Lender then notwithstanding the provisions of Section 11.6 it shall not be entitled to vote on any matter requiring the consent of the Required Lenders or to object to any matter requiring the consent of all the Lenders; provided, however, that all other benefits and obligations under the Credit Documents shall apply to such Defaulting Lender. 11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES. All indemnities set forth herein and all representations and warranties made herein shall survive the execution and delivery of this Credit Agreement, the making of the Loans, and the repayment of the Loans and other obligations and the termination of the Commitments hereunder. 11.11 GOVERNING LAW; JURISDICTION. (a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or proceeding with respect to this Credit Agreement or any other Credit Document may be brought in the courts of the State of North 79 85 Carolina or of the United States for the Western District of North Carolina, and, by execution and delivery of this Credit Agreement, each Credit Party hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of such courts. Each Credit Party further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at the address for notices pursuant to Section 11.1, such service to become effective 20 days after such mailing. Nothing herein shall affect the right of a Lender to serve process in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against a Credit Party in any other jurisdiction. (b) Each Credit Party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Credit Agreement or any other Credit Document brought in the courts referred to in subsection (a) hereof and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. 11.12 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY. 11.13 SEVERABILITY. If any provision of any of the Credit Documents is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions. 11.14 FURTHER ASSURANCES. The Credit Parties agree, upon the request of the Administrative Agent, to promptly take such actions, as reasonably requested, as is necessary to carry out the intent of this Credit Agreement and the other Credit Documents. 11.15 ENTIRETY. This Credit Agreement together with the other Credit Documents, the Fee Letter and the Mandate Letter dated June 19, 2000 from Bank of America and BAS to the Borrower represent the entire agreement of the parties hereto and thereto, and supersede all prior agreements and 80 86 understandings, oral or written, if any, including any commitment letters or correspondence relating to the Credit Documents or the transactions contemplated herein and therein. 11.16 BINDING EFFECT; CONTINUING AGREEMENT. (a) This Credit Agreement shall become effective at such time when all of the conditions set forth in Section 5.1 have been satisfied or waived by the Lenders and it shall have been executed by the Borrower, the Guarantors and the Administrative Agent, and the Administrative Agent shall have received copies hereof (telefaxed or otherwise) which, when taken together, bear the signatures of each Lender, and thereafter this Credit Agreement shall be binding upon and inure to the benefit of the Borrower, the Guarantors, the Administrative Agent and each Lender and their respective successors and assigns. Upon this Credit Agreement becoming effective the Existing Credit Agreements shall be deemed terminated and the Credit Parties and the lenders party to the Existing Credit Agreements shall no longer have any obligations thereunder (other than those obligations of the Credit Parties in the Existing Credit Agreements that expressly survive the termination of the Existing Credit Agreements). (b) This Credit Agreement shall be a continuing agreement and shall remain in full force and effect until all Loans, interest, fees and other Credit Party Obligations have been paid in full and all Commitments have been terminated. Upon termination, the Credit Parties shall have no further obligations (other than the indemnification provisions that survive) under the Credit Documents; provided that should any payment, in whole or in part, of the Credit Party Obligations be rescinded or otherwise required to be restored or returned by the Administrative Agent or any Lender, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, then the Credit Documents shall automatically be reinstated and all amounts required to be restored or returned and all costs and expenses incurred by the Administrative Agent or Lender in connection therewith shall be deemed included as part of the Credit Party Obligations. 81 87 Each of the parties hereto has caused a counterpart of this Credit Agreement to be duly executed and delivered as of the date first above written. BORROWER: PULTE CORPORATION, a Michigan corporation By: ----------------------------------------------- Name: --------------------------------------------- Title: -------------------------------------------- 88 GUARANTORS: ABACOA HOMES, INC., a Florida corporation 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 HOMESITE SOLUTIONS CORPORATION, a Michigan corporation ISLAND WALK DEVELOPMENT COMPANY, a Florida corporation PB VENTURE L.L.C., a Michigan limited liability company PN II, INC., a Nevada corporation PULTE DEVELOPMENT CORPORATION, a Michigan corporation PULTE DIVERSIFIED COMPANIES, INC., a Michigan corporation PULTE FINANCIAL COMPANIES, INC., a Michigan corporation PULTE HOME CORPORATION, a Michigan corporation 89 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 MINNESOTA CORPORATION, a Minnesota corporation PULTE HOMES OF OHIO CORPORATION, an Ohio corporation PULTE HOMES OF SOUTH CAROLINA, INC., a Michigan corporation PULTE HOMES OF TEXAS, L.P., a Texas limited partnership By: PNI, INC., a Nevada corporation, its general partner PULTE LAND DEVELOPMENT CORPORATION, a Michigan corporation PULTE LIFESTYLE COMMUNITIES, INC., a Michigan corporation PULTE - IN CORPORATION, a Michigan corporation RADNOR HOMES, INC., a Michigan corporation RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY, INC., a Florida corporation RN ACQUISITION 2 CORP., a Nevada corporation 90 SEAN/CHRISTOPHER HOMES, INC., a Michigan corporation VILLAGE WALK DEVELOPMENT COMPANY, INC., a Florida corporation WIL CORPORATION, a Michigan corporation By: -------------------------------------- Name: Title: 91 LENDERS: BANK OF AMERICA, N.A., individually in its capacity as a Lender and in its capacity as the Administrative Agent By: ----------------------------------------------- Name: --------------------------------------------- Title: -------------------------------------------- 92 BANK ONE, NA, individually in its capacity as a Lender and in its capacity as the Syndication Agent By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 93 COMERICA BANK, individually in its capacity as a Lender and in its capacity as the Co-Agent By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 94 SUNTRUST BANK By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 95 MICHIGAN NATIONAL BANK By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 96 PNC BANK, NATIONAL ASSOCIATION By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 97 THE FUJI BANK, LIMITED By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 98 CITICORP REAL ESTATE, INC., individually in its capacity as a Lender and in its capacity as the Documentation Agent By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 99 COMPASS BANK By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 100 CREDIT SUISSE FIRST BOSTON By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- EX-4.19 7 k64962ex4-19.txt 1ST AMENDMENT TO CREDIT AGREEMENT DATED 2/16/2001 1 EXHIBIT 4.19 FIRST AMENDMENT AND WAIVER THIS FIRST AMENDMENT AND WAIVER (this "Amendment") dated as of February 16, 2001, is to that certain Credit Agreement dated as of August 31, 2000 (as amended, modified, supplemented or restated from time to time, the "Credit Agreement") among PULTE CORPORATION, a Michigan corporation (the "Borrower"), each of the Material Subsidiaries of the Borrower (the "Guarantors"; together with the Borrower, individually a "Credit Party" and collectively the "Credit Parties"), the Lenders from time to time party thereto (the "Lenders"), BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (the "Administrative Agent"), BANK ONE, NA, as Syndication Agent for the Lenders and COMERICA BANK, as Co-Agent for the Lenders. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement. W I T N E S S E T H WHEREAS, the Borrower may from time to time issue bonds pursuant to bond indentures that contain negative pledge provisions; WHEREAS, the Borrower has requested that the Lenders waive any possible default which may occur or may have occurred solely in respect of the existence of the Borrower's current bond indentures; WHEREAS, the Borrower and the Lenders have agreed to clarify Section 8.12 of the Credit Agreement to more clearly provide that Borrower's current and future bond indentures and equivalent instruments do not and will not violate the prohibition on negative pledges set forth in Section 8.12 of the Credit Agreement; WHEREAS, the waiver and the amendment requested requires the consent of the Required Lenders; and WHEREAS, the Required Lenders have agreed to the waiver and the amendment on the terms and conditions set forth herein. NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: SECTION 1 REAFFIRMATION/WAIVER 1.1 Reaffirmation of Existing Debt. The Credit Parties acknowledge and confirm that (a) the Borrower's obligation to repay the outstanding principal amount of the Loans is unconditional and, as of the date hereof, not subject to any offsets, defenses or counterclaims, (b) the Administrative Agent and the Lenders have performed fully all of their respective obligations under the Credit Agreement and the other Credit Documents, and (c) by entering into this Amendment, the Lenders party hereto do not waive (except for the waiver of the possible default specified below) or release any term or condition of the Credit Agreement or any of the other 2 Credit Documents or any of their rights or remedies under such Credit Documents or applicable law or any of the obligations of any Credit Party thereunder. 1.2 Waiver of Possible Default. Subject to the other terms and conditions of this Amendment and so long as (a) no Default or Event of Default shall have occurred under the Credit Agreement or under any other Credit Document and (b) no other Person shall have commenced any suit or other legal proceeding against any Credit Party or any of its assets to enforce any obligations for Funded Debt of such Credit Party to such Person, the Lenders agree to waive any possible Default or Event of Default which may have occurred solely in respect of the existence of the Borrower's current bond indenture. Except for the specific waiver set forth above, nothing contained herein shall be deemed to constitute a waiver of any rights or remedies the Administrative Agent or any Lender may have under the Credit Agreement or any other Credit Document or under applicable law. The specific waiver set forth herein is a one-time waiver and shall be effective only in this specific instance, and shall not obligate the Lenders to waive any other Default or Event of Default, now existing or hereafter arising. SECTION 2 AMENDMENT 2.1 Amendment to Section 8.12. Section 8.12 of the Credit Agreement is hereby amended and restated in its entirety to read as follows: 8.12 NO OTHER NEGATIVE PLEDGES. No Credit Party will enter into, assume, become subject to or permit to exist any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or requiring the grant of any security for such obligation if security is given for some other obligation, except as set forth in (a) the Credit Documents and (b) any bond indenture or equivalent instrument (or any amendment or supplement thereto) to which such Credit Party is now or hereafter a party. SECTION 3 MISCELLANEOUS 3.1 Ratification. The term "Credit Agreement" as used in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as herein specifically agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms. 3.2 Representations. Each of the Credit Parties and the Lenders party hereto represents and warrants as follows: (a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment. 3 (b) This Amendment has been duly executed and delivered by such Person and constitutes such Person's legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). (c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment. 3.3 No Conflicts. Neither the execution and delivery of this Amendment, nor the consummation of the transactions contemplated herein, nor performance of and compliance with the terms and provisions hereof by each Credit Party will (a) violate, contravene or conflict with any provision of its articles or certificate of incorporation, bylaws or other organizational or governing document, (b) violate, contravene or conflict with any law, rule, regulation, order, writ, judgment, injunction, decree or permit applicable to it, (c) violate, contravene or conflict with contractual provisions of, or cause an event of default under, any material indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound or (d) result in or require the creation of any Lien upon or with respect to its properties. 3.4 No Default. The Credit Parties represent and warrant to the Lenders that (a) the representations and warranties of the Credit Parties set forth in Section 6 of the Credit Agreement are true and correct as of the date hereof and (b) no event has occurred and is continuing which constitutes a Default or an Event of Default (other than the possible default described above). 3.5 General Release. In consideration of the Required Lenders entering into this Amendment, the Credit Parties hereby release the Administrative Agent, the Lenders and their respective officers, employees, representatives, agents, counsel and directors from any and all actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises from any action or failure to act under any Credit Document on or prior to the date hereof. 3.6 Credit Document. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement. 3.7 Condition Precedent. This Amendment shall be effective upon receipt by the Administrative Agent of a counterpart signature (via facsimile or otherwise) to this Amendment from each of the Credit Parties and the Required Lenders. 3.8 Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart by telecopy shall be effective as an original and shall constitute a representation that an original will be delivered. 4 3.9 Expenses of Administrative Agent. The Credit Parties agree to pay all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of Moore & Van Allen PLLC, special counsel to the Administrative Agent. 3.10 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. [Remainder of Page Intentionally Left Blank] 5 IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date and year first above written. BORROWER: PULTE CORPORATION, a Michigan corporation By: ------------------------------------------- Name: ----------------------------------------- Title: ---------------------------------------- 6 GUARANTORS: ABACOA HOMES, INC., a Florida corporation 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 HOMESITE SOLUTIONS CORPORATION, a Michigan corporation ISLAND WALK DEVELOPMENT COMPANY, a Florida corporation PB VENTURE L.L.C., a Michigan limited liability company PN II, INC., a Nevada corporation PULTE DEVELOPMENT CORPORATION, a Michigan corporation PULTE DIVERSIFIED COMPANIES, INC., a Michigan corporation PULTE FINANCIAL COMPANIES, INC., a Michigan corporation PULTE HOME CORPORATION, a Michigan corporation 7 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 MINNESOTA CORPORATION, a Minnesota corporation PULTE HOMES OF OHIO CORPORATION, an Ohio corporation PULTE HOMES OF SOUTH CAROLINA, INC., a Michigan corporation PULTE HOMES OF TEXAS, L.P., a Texas limited partnership By: PN I, INC., a Nevada corporation, its general partner PULTE LAND DEVELOPMENT CORPORATION, a Michigan corporation PULTE LIFESTYLE COMMUNITIES, INC., a Michigan corporation PULTE - IN CORPORATION, a Michigan corporation RADNOR HOMES, INC., a Michigan corporation RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY, INC., a Florida corporation RN ACQUISITION 2 CORP., a Nevada corporation 8 SEAN/CHRISTOPHER HOMES, INC., a Michigan corporation VILLAGE WALK DEVELOPMENT COMPANY, INC., a Florida corporation WIL CORPORATION, a Michigan corporation By: ------------------------------------ Name: Title: 9 LENDERS: BANK OF AMERICA, N.A., individually in its capacity as a Lender and in its capacity as the Administrative Agent By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 10 BANK ONE, NA, individually in its capacity as a Lender and in its capacity as the Syndication Agent By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 11 COMERICA BANK, individually in its capacity as a Lender and in its capacity as the Co-Agent By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 12 SUNTRUST BANK By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 13 MICHIGAN NATIONAL BANK By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 14 PNC BANK, NATIONAL ASSOCIATION By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 15 THE FUJI BANK, LIMITED By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 16 CREDIT LYONNAIS NEW YORK BRANCH By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 17 THE NORTHERN TRUST COMPANY By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- EX-4.20 8 k64962ex4-20.txt 2ND AMENDMENT TO CREDIT AGREEMENT DATED 07/30/2001 1 EXHIBIT 4.20 SECOND AMENDMENT THIS SECOND AMENDMENT (this "Amendment") dated as of July 30, 2001, is to that certain Credit Agreement dated as of August 31, 2000 (as previously amended and modified and as amended, modified, supplemented or restated from time to time, the "Credit Agreement") among PULTE HOMES, INC. f/k/a Pulte Corporation, a Michigan corporation (the "Borrower"), each of the Material Subsidiaries of the Borrower (the "Guarantors"; together with the Borrower, individually a "Credit Party" and collectively the "Credit Parties"), the Lenders from time to time party thereto (the "Lenders"), BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (the "Administrative Agent"), BANK ONE, NA, as Syndication Agent for the Lenders and COMERICA BANK, as Co-Agent for the Lenders. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement. W I T N E S S E T H WHEREAS, the Borrower has informed the Lenders that it intends to acquire all of the Capital Stock of Del Webb Corp.; WHEREAS, the Borrower and the Lenders have requested certain amendments to the Credit Agreement in connection with such Acquisition; WHEREAS, the amendments requested require the consent of the Required Lenders; and WHEREAS, the Required Lenders have agreed to the amendments on the terms and conditions set forth herein. NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: SECTION 1 AMENDMENT The Credit Agreement is hereby amended as follows: 1.1 Amendments to Section 1.1. (a) The definition of "Co-Agent" is hereby amended and restated in its entirety to read as follows: "Co-Agent" means each of Comerica Bank (or any successor thereto) and SunTrust Bank (or any successor thereto). (b) The definition of "Credit Documents" is hereby amended and restated in its entirety to read as follows: 2 "Credit Documents" means this Credit Agreement, the Notes, any Joinder Agreement, the Intercreditor Agreement and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto. (c) The definition of "Debt to Capitalization Ratio" is hereby amended and restated in its entirety to read as follows: "Debt to Capitalization Ratio" means, as of any date, the ratio of (a) Funded Debt less (i) Subordinated Debt issued by the Credit Parties which matures on or after the Maturity Date in an aggregate amount not to exceed $100,000,000 and (ii) all cash and Cash Equivalents held by the Credit Parties in excess of $25,000,000 but less than $100,000,000, to (b) Capitalization. (d) The definition of "Del Webb Acquisition" is hereby added to read as follows: "Del Webb Acquisition" means the Acquisition by the Borrower of Del Webb Corp. (e) The definition of "Documentation Agent" is hereby added to read as follows: "Documentation Agent" means Citicorp Real Estate, Inc. (or any successor thereto). (f) The definition of "Funded Debt" is hereby amended and restated in its entirety to read as follows: "Funded Debt" means, without duplication, the sum of all Indebtedness of the Credit Parties for borrowed money other than Indebtedness owed to a REIT, including, without limitation, (a) all purchase money Indebtedness of the Credit Parties, (b) the principal portion of all obligations of the Credit Parties under Capital Leases, (c) all Guaranty Obligations of the Credit Parties with respect to Indebtedness of another Person, (d) all Indebtedness of another entity secured by a Lien on any property of the Credit Parties whether or not such Indebtedness has been assumed by a Credit Party, and (e) all Indebtedness of any partnership or unincorporated joint venture to the extent a Credit Party is legally obligated or has a reasonable expectation of being liable with respect thereto, net of any assets of such partnership or joint venture. (g) The definition of "Intercreditor Agreement" is hereby added to read as follows: "Intercreditor Agreement" means that certain Intercreditor and Subordination Agreement, dated as of the closing date of the Del Webb Acquisition, among the Administrative Agent, on behalf of the Lenders, Citicorp Real Estate, Inc. and Bank One Trust Company, National Association, as secured creditors, Asset Seven Corp., an Arizona corporation, and all other REITs that become a party to the Intercreditor Agreement after the Second Amendment 3 Effective Date, as subordinated creditors, in form and substance satisfactory to the Administrative Agent. (h) The definition of "Permitted Liens" is hereby amended by adding the following clause (m) thereto and making the appropriate grammatical and punctuation changes: (m) mortgage Liens granted to secure Indebtedness permitted by Section 8.1(j) so long as such mortgage Liens are unrecorded and unperfected. (i) The definition of "Second Amendment Effective Date" is hereby added to read as follows: "Second Amendment Effective Date" means July 30, 2001. (j) The definition of "REIT" is hereby added to read as follows: "REIT" means a collective reference to Asset Seven Corp., an Arizona corporation, and any other Credit Party (other than the Borrower) that properly elects to be taxed as a real estate investment trust under Section 856(c) of the Code and which becomes a party to the Intercreditor Agreement. 1.2 Amendment to Section 7.2(b). Section 7.2(b) is hereby amended and restated in its entirety to read as follows: 7.2 FINANCIAL COVENANTS. ************ (b) Tangible Net Worth. As of the last day of each fiscal quarter of the Borrower (beginning with the fiscal quarter ending September 30, 2000), Tangible Net Worth shall be greater than or equal to (i) prior to the closing of the Del Webb Acquisition, the sum of (A) $800 million, plus (B) 50% of the cumulative Net Income (without deduction for losses) earned for each completed fiscal quarter subsequent to March 31, 2000 to the date of determination and (ii) after the closing of the Del Webb Acquisition, the sum of (A) 85% of Tangible Net Worth as of September 30, 2001, plus (B) 50% of the cumulative Net Income (without deduction for losses) earned for each completed fiscal quarter subsequent to September 30, 2001 to the date of determination. 1.3 Amendment to Section 8.1. Section 8.1 is hereby amended by adding the following subsection (j) thereto and making the appropriate grammatical and punctuation changes: 8.1 INDEBTEDNESS. No Credit Party will contract, create, incur, assume or permit to exist any Indebtedness, except: ************ 4 (j) Indebtedness owing by a Credit Party (other than the Borrower) to a REIT; provided that (i) the Del Webb Acquisition shall have been consummated, (ii) such REIT shall have become a Guarantor pursuant to the terms of Section 7.12, (iii) such REIT shall have entered into the Intercreditor Agreement, (iv) such REIT shall be in compliance with the terms of Section 8.14 and (v) such REIT shall qualify as a real estate investment trust under applicable tax laws. 1.4 Addition of New Section 8.14. A new Section 8.14 is hereby added to read as follows: SECTION 8.14 RESTRICTIONS ON THE REIT. No REIT will engage in any activities or operations whatsoever other than (a) general administrative and other functions permitted by law, (b) possessing any promissory notes that evidence the Indebtedness permitted by Section 8.1(j) and receiving payments of principal and interest on such promissory notes, (c) possessing any other "real estate assets" within the meaning of Section 856(c)(5) of the Code for purposes of satisfying the requirements for a real estate investment trust under applicable tax laws, (d) making or consenting to dividends and distributions to a Credit Party and (e) any other functions or other activities that are now or may become required or permitted of a REIT for purposes of satisfying the requirements for a real estate investment trust under applicable tax laws. Notwithstanding the terms of Sections 7.12, 8.1 and 8.2, (i) each REIT will at all times be a Guarantor and will not be released from its Guaranty Obligations under this Credit Agreement if it shall cease to be a Material Subsidiary, (ii) no REIT will incur any Indebtedness other than (A) its Guaranty Obligations under this Credit Agreement and (B) accounts payable incurred for general administrative and other functions of such REIT permitted by law in an amount not to exceed $100,000 at any time outstanding and (iii) no REIT will contract, create, incur, assume or permit to exist any Lien with respect to any of its property or assets of any kind (whether real or personal, tangible or intangible), whether now owned or after acquired, except for Liens in favor of the Administrative Agent and Permitted Liens relating to the possession and operation of its real property and other assets. 1.5 Addition of New Section 10.10. A new Section 10.10 is hereby added to read as follows: SECTION 10.10 AUTHORIZATION OF INTERCREDITOR AGREEMENT. Each of the Lenders hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on their behalf and to carry out the responsibilities and exercise the powers afforded the Administrative Agent therein. 1.6 Addition of Agents. The following agents are hereby added to the cover page and preamble of the Credit Agreement: Citicorp Real Estate, Inc., as Documentation Agent SunTrust Bank, as Co-Agent 5 1.7 Amendment to Schedule 1.1(a). Schedule 1.1(a) to the Credit Agreement is hereby updated and replaced with the Schedule 1.1(a) attached hereto. SECTION 2 MISCELLANEOUS 2.1 Ratification. The term "Credit Agreement" as used in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as herein specifically agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms. 2.2 Representations. Each of the Credit Parties and the Lenders party hereto represents and warrants as follows: (a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment. (b) This Amendment has been duly executed and delivered by such Person and constitutes such Person's legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). (c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment. 2.3 No Conflicts. Neither the execution and delivery of this Amendment, nor the consummation of the transactions contemplated herein, nor performance of and compliance with the terms and provisions hereof by each Credit Party will (a) violate, contravene or conflict with any provision of its articles or certificate of incorporation, bylaws or other organizational or governing document, (b) violate, contravene or conflict with any law, rule, regulation, order, writ, judgment, injunction, decree or permit applicable to it, (c) violate, contravene or conflict with contractual provisions of, or cause an event of default under, any material indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound or (d) result in or require the creation of any Lien upon or with respect to its properties. 2.4 No Default. The Credit Parties represent and warrant to the Lenders that (a) the representations and warranties of the Credit Parties set forth in Section 6 of the Credit Agreement are true and correct as of the date hereof and (b) no event has occurred and is continuing which constitutes a Default or an Event of Default. 2.5 General Release. In consideration of the Required Lenders entering into this Amendment, the Credit Parties hereby release the Administrative Agent, the Lenders and their respective officers, employees, representatives, agents, counsel and directors from any and all actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in 6 law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises from any action or failure to act under any Credit Document on or prior to the date hereof. 2.6 Credit Document. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement. 2.7 Condition Precedent. This Amendment shall be effective upon receipt by the Administrative Agent of a counterpart signature (via facsimile or otherwise) to this Amendment from each of the Credit Parties and the Required Lenders. 2.8 Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart by telecopy shall be effective as an original and shall constitute a representation that an original will be delivered. 2.9 Expenses of Administrative Agent. The Credit Parties agree to pay all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of Moore & Van Allen PLLC, special counsel to the Administrative Agent. 2.10 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date and year first above written. BORROWER: PULTE HOMES, INC. F/K/A PULTE CORPORATION, a Michigan corporation By: -------------------------------------------- Name: ------------------------------------------ Title: ----------------------------------------- 7 GUARANTORS: ABACOA HOMES, INC., a Florida corporation 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 HOMESITE SOLUTIONS CORPORATION, a Michigan corporation ISLAND WALK DEVELOPMENT COMPANY, a Florida corporation PB VENTURE L.L.C., a Michigan limited liability company PN II, INC., a Nevada corporation PULTE DEVELOPMENT CORPORATION, a Michigan corporation PULTE DIVERSIFIED COMPANIES, INC., a Michigan corporation PULTE FINANCIAL COMPANIES, INC., a Michigan corporation PULTE HOME CORPORATION, a Michigan corporation 8 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 MINNESOTA CORPORATION, a Minnesota corporation PULTE HOMES OF OHIO CORPORATION, an Ohio corporation PULTE HOMES OF SOUTH CAROLINA, INC., a Michigan corporation PULTE HOMES OF TEXAS, L.P., a Texas limited partnership By: PN I, INC., a Nevada corporation, its general partner PULTE LAND DEVELOPMENT CORPORATION, a Michigan corporation PULTE LIFESTYLE COMMUNITIES, INC., a Michigan corporation PULTE - IN CORPORATION, a Michigan corporation RADNOR HOMES, INC., a Michigan corporation RIVERWALK OF THE PALM BEACHES DEVELOPMENT COMPANY, INC., a Florida corporation RN ACQUISITION 2 CORP., a Nevada corporation 9 SEAN/CHRISTOPHER HOMES, INC., a Michigan corporation VILLAGE WALK DEVELOPMENT COMPANY, INC., a Florida corporation WIL CORPORATION, a Michigan corporation By: ---------------------------------------------- Name: -------------------------------------------- Title: ------------------------------------------- 10 LENDERS: BANK OF AMERICA, N.A., individually in its capacity as a Lender and in its capacity as the Administrative Agent By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 11 BANK ONE, NA, individually in its capacity as a Lender and in its capacity as the Syndication Agent By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 12 COMERICA BANK, individually in its capacity as a Lender and in its capacity as a Co-Agent By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 13 SUNTRUST BANK By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 14 MICHIGAN NATIONAL BANK By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 15 PNC BANK, NATIONAL ASSOCIATION By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 16 THE FUJI BANK, LIMITED By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 17 CREDIT LYONNAIS NEW YORK BRANCH By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 18 THE NORTHERN TRUST COMPANY By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 19 COMPASS BANK By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 20 CITICORP REAL ESTATE, INC. By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 21 CREDIT SUISSE FIRST BOSTON By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- 22 Schedule 1.1(a) Revolving Loan Commitment Percentages
------------------------------------------------------------------------------------------------------------------------------- LENDER REVOLVING LOAN REVOLVING LOAN COMMITMENT COMMITMENT PERCENTAGE ------------------------------------------------------------------------------------------------------------------------------- Bank of America, N.A. $100,000,000 17.857142857% ------------------------------------------------------------------------------------------------------------------------------- Bank One, NA $100,000,000 17.857142857% ------------------------------------------------------------------------------------------------------------------------------- Citicorp Real Estate, Inc. $85,000,000 15.178571429% ------------------------------------------------------------------------------------------------------------------------------- Comerica Bank $50,000,000 8.928571429% ------------------------------------------------------------------------------------------------------------------------------- SunTrust Bank $50,000,000 8.928571429% ------------------------------------------------------------------------------------------------------------------------------- Credit Lyonnais New York Branch $40,000,000 7.142857143% ------------------------------------------------------------------------------------------------------------------------------- Michigan National Bank $35,000,000 6.250000000% ------------------------------------------------------------------------------------------------------------------------------- PNC Bank, National Association $35,000,000 6.250000000% ------------------------------------------------------------------------------------------------------------------------------- The Fuji Bank, Limited $20,000,000 3.571428571% ------------------------------------------------------------------------------------------------------------------------------- Compass Bank $20,000,000 3.571428571% ------------------------------------------------------------------------------------------------------------------------------- The Northern Trust Company $15,000,000 2.678571429% ------------------------------------------------------------------------------------------------------------------------------- Credit Suisse First Boston $10,000,000 1.785714286% ------------------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------------------------------------- TOTAL: $560,000,000 100% -------------------------------------------------------------------------------------------------------------------------------
EX-4.21 9 k64962ex4-21.txt INTERCREDITOR AND SUBORDINATION AGREEMENT 1 EXHIBIT 4.21 INTERCREDITOR AND SUBORDINATION AGREEMENT THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Intercreditor Agreement"), dated as of July 31, 2001, is by and among ASSET SEVEN CORP., an Arizona corporation ("Asset Seven"), each subsidiary of Pulte Homes, Inc. that from time to time executes an Intercreditor Joinder Agreement (as defined below) (together with Asset Seven, individually a "Subordinated Creditor" and collectively the "Subordinated Creditors"), BANK OF AMERICA, N.A., as administrative agent for the Five Year Lenders from time to time party to the Five Year Credit Agreement described below (in such capacity, "Bank of America"), CITICORP REAL ESTATE, INC., as administrative agent for the Bridge Lenders from time to time party to the Bridge Credit Agreement described below (in such capacity, "Citicorp"), and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, as trustee for the Noteholders pursuant to the Indenture described below (in such capacity, the "Trustee"). RECITALS: A. Pursuant to the terms of that certain Credit Agreement, dated as of August 31, 2000 (as previously amended, modified or supplemented and as amended, modified, supplemented or restated from time to time, the "Five Year Credit Agreement"), among Pulte Homes, Inc. f/k/a Pulte Corporation (the "Borrower"), the Material Subsidiaries of the Borrower (the "Guarantors"), the lenders from time to time party thereto (the "Five Year Lenders") and Bank of America, the Five Year Lenders have provided a revolving credit facility to the Borrower. B. Pursuant to the terms of that certain Credit Agreement, dated as of the date hereof (as amended, modified, supplemented or restated from time to time, the "Bridge Credit Agreement"), among the Borrower, the Guarantors, the lenders party thereto (the "Bridge Lenders") and Citicorp, the Bridge Lenders have provided a bridge loan credit facility to the Borrower. C. The Borrower has issued and may issue from time to time senior unsecured notes (the "Senior Notes") pursuant to that certain indenture, dated as of October 24, 1995, or a supplement thereto (as previously amended, modified or supplemented and as amended, modified, supplemented or restated from time to time, the "Indenture"). D. The Subordinated Creditors are holders of promissory notes (the "Subordinated Notes") from certain subsidiaries of the Borrower (the "Note Issuers"), which Subordinated Notes are secured by mortgages on certain real properties owned by the Note Issuers (the "Collateral"). E. Each Subordinated Creditor is a subsidiary of the Borrower. F. In order to induce the Five Year Lenders, the Bridge Lenders and the holders of the Senior Notes (the "Noteholders") to provide or continue to provide the financial 2 accommodations to the Borrower under the Five Year Credit Agreement, the Bridge Credit Agreement and the Senior Notes (collectively, the "Senior Loan Documents" and individually, a "Senior Loan Document"), and because of the direct benefit to the Subordinated Creditors of such financial accommodations, Bank of America, Citicorp and the Trustee have agreed to enter into this Intercreditor Agreement. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I Definitions 1.1 Certain Defined Terms. For the purposes hereof: (a) "Code" means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder, as amended, modified, succeeded or replaced from time to time. References to sections of the Code should be construed also to refer to any successor sections. (b) "Event of Default" means (i) an "Event of Default" as defined in the Five Year Credit Agreement, (ii) an "Event of Default" as defined in the Bridge Credit Agreement or (iii) an event of default under the Senior Notes or the Indenture. (c) "Senior Creditors" means (i) so long as any Senior Obligations (or commitments with respect thereto) remains outstanding under the Five Year Credit Agreement, Bank of America, (ii) so long as any Senior Obligations (or commitments with respect thereto) remains outstanding under the Bridge Credit Agreement, Citicorp, and (iii) so long as any Senior Obligations (or commitments with respect thereto) remains outstanding under the Senior Notes, the Trustee. (d) "Senior Obligations" means (i) the "Credit Party Obligations" as defined in the Five Year Credit Agreement, (ii) the "Credit Party Obligations" as defined in the Bridge Credit Agreement and (iii) all obligations (including, without limitation, principal, interest and fees) outstanding under the Senior Notes. (e) "Subordinated Obligations" means (i) the principal amount of, and accrued interest (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of a Note Issuer) on any Subordinated Note, and (ii) all other indebtedness, obligations and liabilities of the Note Issuers to the Subordinated Creditors now existing or hereafter incurred. 2 3 (f) "Intercreditor Joinder Agreement" means an intercreditor joinder agreement in substantially the form of Exhibit A attached hereto. 1.2 Other Definitional Provisions. The words "hereof," "herein" and "hereunder" and words of similar import when used in this Intercreditor Agreement shall refer to this Intercreditor Agreement as a whole and not to any particular provision of this Intercreditor Agreement, and section, subsection, schedule and exhibit references are to this Intercreditor Agreement unless otherwise specified. Defined terms herein shall include in the singular number the plural and in the plural the singular. ARTICLE II Terms of Subordination 2.1 Subordination. (a) Each of the Subordinated Creditors agrees, for itself and each future holder of the Subordinated Obligations held by such Subordinated Creditor, that the Subordinated Obligations are expressly subordinate and junior in right of payment (as defined in subsection 2.1(b)) to all Senior Obligations in all respects. (b) "Subordinate and junior in right of payment" shall mean that: (i) Upon the occurrence and during the continuance of an Event of Default, none of the Subordinated Creditors will, without the express prior written consent of the Senior Creditors or unless otherwise instructed by the Senior Creditors, take, demand or receive, directly or indirectly, by set-off, redemption, purchase or in any other manner, any payment on or security for the whole or any part of the Subordinated Obligations, and, without the express prior written consent of the Senior Creditors or unless otherwise instructed by the Senior Creditors, none of the Subordinated Creditors will make demand for the payment of or accelerate the scheduled maturities of any amounts owing under the Subordinated Obligations. (ii) Until the Senior Obligations shall have been paid in full and satisfied, upon the occurrence and during the continuance of an Event of Default, none of the Subordinated Creditors will accelerate, declare to be immediately due and payable, enforce or take any action to enforce or collect, or otherwise exercise any rights or remedies it may possess with respect to the Subordinated Obligations or any portion thereof, or take any action to enforce or otherwise exercise any rights or remedies with respect to, or realize upon, the Collateral, in each case without the prior written consent of the Senior Creditors. 3 4 (iii) Without limiting the generality of the foregoing provisions of this Section 2.1, in the event of any liquidation, termination, revocation or other winding-up of a Note Issuer, or in the event of any receivership, insolvency, reorganization or bankruptcy proceedings, assignment for the benefit of creditors or any proceeding by or against a Note Issuer for any relief under any bankruptcy, reorganization or insolvency law or laws (federal or state) or any law (federal or state) relating to the relief of debtors, readjustment of indebtedness, reorganization, composition or extension of indebtedness, then, upon the occurrence and during the continuance of an Event of Default, unless otherwise agreed to or instructed in writing by the Senior Creditors, all Senior Obligations shall first be paid in full before any payment or distribution is made in respect of the Subordinated Obligations, and any payment or distribution of any kind or character (whether in cash, property or securities) that, but for the subordination provisions contained herein, would otherwise be payable or deliverable to a Subordinated Creditor upon or in respect of the Subordinated Obligations, shall instead be paid over or delivered to the Senior Creditors or their representatives, and such Subordinated Creditor shall not receive any such payment or distribution or any benefit therefrom unless and until the Senior Obligations shall have been fully paid and satisfied. 2.2 Power of Attorney; Agreement to Cooperate. Each of the Subordinated Creditors hereby agrees, upon the occurrence of an Event of Default, to duly and promptly take such action as may be requested at any time and from time to time by the Senior Creditors, to file appropriate proofs of claim in respect of the Subordinated Obligations, and to execute and deliver such powers of attorney, assignment of proofs of claim or other instruments as may be requested by the Senior Creditors in order to enable the Senior Creditors to enforce any and all claims upon or in respect of the Subordinated Obligations and to collect and receive any and all payments or distributions which may be payable or deliverable at any time upon or in respect of the Subordinated Obligations. 2.3 Payments Received by a Subordinated Creditor. Should any payment or distribution or security or realization of the Collateral, or the proceeds of any thereof, be collected or received by a Subordinated Creditor in respect of the Subordinated Obligations, and such collection or receipt is received in a receivership, insolvency, reorganization or bankruptcy proceeding involving a Note Issuer or is not expressly permitted hereunder, the Subordinated Creditor will forthwith turn over the same to the Senior Creditors in the form received (except for endorsement or assignment by the Subordinated Creditor when necessary) to be applied to the Senior Obligations and, until so turned over, the same shall be held in trust by the Subordinated Creditor as the property of the Senior Creditors. 2.4 Subrogation. The Subordinated Creditors shall not be subrogated to the rights of the Senior Creditors to receive payments or distributions of assets of the Note Issuers for the Senior Obligations. 4 5 2.5 Application of Payments Among Senior Creditors. Any payment with respect to the Senior Obligations or received by a Senior Creditor pursuant to the terms of this Intercreditor Agreement shall be applied pro rata to the Senior Obligations outstanding under the Five Year Credit Agreement, the Bridge Credit Agreement and the Senior Notes based on the aggregate amount of Senior Obligations outstanding under the Five Year Credit Agreement, the Bridge Credit Agreement and the Senior Notes, respectively, on the date of such payment, as certified by Bank of America, Citicorp and the Trustee, respectively, to the other Senior Creditors. ARTICLE III Representations and Warranties 3.1 Each of the Subordinated Creditors represents and warrants to the Senior Creditors that: (a) Subordinated Obligations. The Subordinated Obligations are payable solely and exclusively to the Subordinated Creditors and to no other person, firm, corporation or other entity, without deduction for any defense, offset or counterclaim. (b) Power and Authority; Authorization; No Violation. Each Subordinated Creditor has full power, authority and legal right to execute, deliver and perform this Intercreditor Agreement, and, the execution, delivery and performance of this Intercreditor Agreement have been duly authorized by all necessary action on the part of such Subordinated Creditor, do not require any approval or consent of any holders of any indebtedness or obligations of such Subordinated Creditor and will not violate any provision of law, governmental regulation, order or decree or any provision of any indenture, mortgage, contract or other agreement to which such Subordinated Creditor is party or by which such Subordinated Creditor is bound. (c) Consents. No consent, license, approval or authorization of, or registration or declaration with, any governmental instrumentality, domestic or foreign, is required in connection with the execution, delivery and performance by the Subordinated Creditor of this Intercreditor Agreement. (e) Binding Obligation. This Intercreditor Agreement constitutes a legal, valid and binding obligation of the Subordinated Creditor enforceable in accordance with its terms. 5 6 ARTICLE IV Modification of Senior Obligations; Reliance 4.1 Each of the Subordinated Creditors agrees that, without the necessity of any reservation of rights against such Subordinated Creditor and without notice to or further assent by such Subordinated Creditor, (a) any demand for payment of any Senior Obligation may be continued, and the Senior Obligations or the liability of the Borrower or any of its subsidiaries for any part thereof, or any guaranty therefor, or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, or released and (b) any document or instrument evidencing or governing the terms of the Senior Obligations or guaranties or documents in connection with the Senior Obligations may be amended, modified, supplemented or terminated, in whole or in part, as the applicable Senior Creditor may deem advisable from time to time, in each case all without notice to or further assent by such Subordinated Creditor, which will remain bound under this Intercreditor Agreement, and all without impairing, abridging, releasing or affecting the subordination provided for herein, notwithstanding any such renewal, extension, modification, acceleration, compromise, amendment, supplement, termination, waiver, surrender or release. Each of the Subordinated Creditors waives (i) any and all notice of the creation, modification, renewal, extension or accrual of any of the Senior Obligations and (ii) notice of or proof of reliance on this Intercreditor Agreement and protest, demand for payment and notice of an Event of Default. The Senior Obligations shall conclusively be deemed to have been created, contracted, incurred or continued in reliance upon this Intercreditor Agreement, and all dealings between or among the Note Issuers and the Senior Creditors shall be deemed to have been consummated in reliance upon this Intercreditor Agreement. The Subordinated Creditors acknowledge and agree that the Senior Creditors, the Five Year Lenders, the Bridge Lenders and the Noteholders have relied upon the subordination provided for herein in making the Senior Obligations available to the Borrower. ARTICLE V No Transfer of Subordinated Obligations or Collateral 5.1 The Subordinated Creditors will not (a) sell, assign or otherwise transfer, in whole or in part, any Subordinated Obligation or any Collateral held by the Subordinated Creditors or any interest therein to any other person or entity (a "Transferee") other than a Subordinated Creditor or (b) create, incur or suffer to exist any security interest, lien, charge or other encumbrance whatsoever upon the Subordinated Obligations or the Collateral in favor of any Transferee. 6 7 ARTICLE VI Joinder of Other Subordinated Creditors 6.1 Any subsidiary of the Borrower that properly elects to be taxed as a real estate investment trust under Section 856(c) of the Code may become a Subordinated Creditor hereunder by executing and delivering an Intercreditor Joinder Agreement. Upon receipt by the Senior Creditors of an Intercreditor Joinder Agreement from a subsidiary of the Borrower, such subsidiary shall be considered a Subordinated Creditor under the terms of this Intercreditor Agreement. ARTICLE VII Miscellaneous 7.1 No Waiver; Cumulative Remedies. No failure or delay on the part of any Senior Creditor, Five Year Lender, Bridge Lender or Noteholder in exercising any right, power or privilege hereunder or under any Senior Loan Document or any other loan document entered into in connection therewith and no course of dealing between the Subordinated Creditors and any Senior Creditor, Five Year Lender, Bridge Lender or Noteholder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Senior Loan Document or any other loan document entered into in connection therewith preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights and remedies provided herein are cumulative and not exclusive of any rights or remedies which the Senior Creditors, the Five Year Lender, the Bridge Lenders and the Noteholders would otherwise have. No notice to or demand on any Subordinated Creditor in any case shall entitle such Subordinated Creditor to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Senior Creditors, the Five Year Lenders, the Bridge Lenders and the Noteholders to any other or further action in any circumstances without notice or demand. 7.2 Further Assurances. The Subordinated Creditors agree, upon the request of a Senior Creditor, to promptly take such actions, as reasonably requested, as is necessary to carry out the intent of this Intercreditor Agreement. 7.3 Notices. All notices and other communications with respect to this Intercreditor Agreement shall have been duly given and shall be effective (a) when delivered in writing, (b) when transmitted via telecopy (or other facsimile device) to the number set out below, (c) the business day following the day on which the same has been delivered prepaid (or on an invoice basis) to a reputable national overnight air courier service, or (d) the third business day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case to the respective parties at the address or telecopy numbers set forth below or at such other address as such party may specify by written notice to the other parties hereto. 7 8 To Bank of America: Bank of America, N.A. 231 S. LaSalle Street Chicago, IL 60697 Attn: Pam Quebbeman Ph: 312/923-0207 Fax: 312/828-3950 To Citicorp: Citicorp Real Estate, Inc. Global Loan Support Service Center 2 Penn's Way, Suite 200 New Castle, DE 19720 Attn: David Bouton Ph: (212) 723-5883 Fax: (212) 723-8380 To the Trustee: Bank One Trust Company, National Association ----------------------------------- ----------------------------------- ----------------------------------- Attn: ------------------------------ Ph: -------------------------------- Fax: ------------------------------- 7.4 Governing Law; Jurisdiction. (a) THIS INTERCREDITOR AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this Intercreditor Agreement may be brought in the courts of the State of New York or of the United States for the Southern District of New York, and, by execution and delivery of this Intercreditor Agreement, each party hereto hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of such courts. Each party hereto further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at the address for notices pursuant to Section 7.3, such service to become effective 20 days after such mailing. Nothing herein shall affect the right of a Senior Creditor to serve process on a Subordinated Creditor in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against a Subordinated Creditor in any other jurisdiction. (b) Each party hereto hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Intercreditor Agreement brought in the courts referred to in subsection (a) hereof and hereby further irrevocably waives and 8 9 agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. 7.5 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS INTERCREDITOR AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INTERCREDITOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 7.6 Successors and Assigns. This Intercreditor Agreement shall be binding upon and inure to the benefit of the Senior Creditors, the Subordinated Creditors, and their respective successors, transferees and assigns. 7.7 Severability. If any provision of any of this Intercreditor Agreement is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions. 7.8 Counterparts. This Intercreditor Agreement may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts by telecopy shall be as effective as an original and shall constitute a representation that an original will be delivered. 7.9 Waivers, Amendments, Etc. This Intercreditor Agreement may not be rescinded or canceled or modified in any way, nor may any provision of this Intercreditor Agreement be waived or changed without the express prior written consent thereto of the Senior Creditors. 9 10 IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be executed as of the day and year first above written. SUBORDINATED CREDITOR: ASSET SEVEN CORP., an Arizona corporation By: ---------------------------------- Name: -------------------------------- Title: ------------------------------- 11 SENIOR CREDITOR: BANK OF AMERICA, N.A., as administrative agent for the Five Year Lenders By: ---------------------------------- Name: -------------------------------- Title: ------------------------------- 12 SENIOR CREDITOR: CITICORP REAL ESTATE, INC., As administrative agent for the Bridge Lenders By: ---------------------------------- Name: -------------------------------- Title: ------------------------------- 13 SENIOR CREDITOR: BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By: ---------------------------------- Name: -------------------------------- Title: ------------------------------- 14 EXHIBIT A Form of Intercreditor Joinder Agreement THIS INTERCREDITOR JOINDER AGREEMENT (this "Agreement"), dated as of , is entered into among , a (the "New REIT") and BANK OF AMERICA, N.A., CITICORP REAL ESTATE, INC. and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, in their capacity as Senior Creditors (the "Senior Creditors") under that certain Intercreditor and Subordination Agreement, dated as of July , 2001, among ASSET SEVEN CORP., an Arizona corporation ("Asset Seven"), the other Subordinated Creditors party thereto and the Senior Creditors (as the same may be amended, modified, extended or restated from time to time, the "Intercreditor Agreement"). All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Intercreditor Agreement. The New REIT and the Senior Creditors hereby agree as follows: 1. The New REIT hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New REIT will be deemed to be a Subordinated Creditor under the Intercreditor Agreement and shall have all of the rights and obligations of a Subordinated Creditor thereunder as if it had executed the Intercreditor Agreement. The New REIT hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Intercreditor Agreement, including without limitation, all of the subordination terms set forth in Article II of the Intercreditor Agreement. 2. This Agreement may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts by telecopy shall be as effective as an original and shall constitute a representation that an original will be delivered. 3. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. IN WITNESS WHEREOF, the New REIT has caused this Agreement to be duly executed by its authorized officer, as of the day and year first above written. [NEW REIT] By: ----------------------------------- Name: -------------------------------- Title: ------------------------------- 15 Acknowledged and Accepted: BANK OF AMERICA, N.A., as administrative agent, in its capacity as a Senior Creditor By: ----------------------------------------- Name: --------------------------------------- Title: -------------------------------------- CITICORP REAL ESTATE, INC., as administrative agent, in its capacity as a Senior Creditor By: ----------------------------------------- Name: --------------------------------------- Title: -------------------------------------- BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee, in its capacity as a Senior Creditor By: ----------------------------------------- Name: --------------------------------------- Title: -------------------------------------- EX-4.22 10 k64962ex4-22.txt LETTER OF REPRESENTATIONS 1 EXHIBIT 4.22 [TO BE RE-TYPED ON ISSUER LETTERHEAD] [DATE] Attention: General Counsel's Office The Depository Trust Company 55 Water Street, 49th Floor New York, NY 10041-0099 RE: [ISSUER'S NAME] [DESCRIPTION AND CUSIP NUMBER OF SECURITIES TO BE EXCHANGED] Exchange of Securities Issued Pursuant to Rule 144A Ladies and Gentlemen: Reference is made to the Letter of Representations addressed to DTC dated [DATE] ("Letter of Representations") from [ISSUER NAME] ("Issuer") and [AGENT NAME] ("Agent") in connection with the above-referenced issue (the "Old Securities"). If such Letter of Representations is not the current version reflecting DTC's current Operational Arrangements, it is understood that the Letter of Representations is subject to DTC's current procedures as stated in DTC's current Operational Arrangements which may be viewed on DTC's web-site "www.dtc.org." Issuer and Agent hereby notify you that [ISSUER SHALL ELECT ONE OF THE FOLLOWING AND CROSS OUT THE OTHER]: 1. On [EFFECTIVE DATE OF REGISTRATION STATEMENT], a Registration Statement under the Securities Act of 1933 with respect to [DESCRIPTION AND CUSIP NUMBER OF NEW SECURITIES] (the "New Securities") was declared effective by the Securities and Exchange Commission. Following the consummation of an exchange offer, the global note(s) representing the Old Securities will be cancelled. 2. Issuer and Agent hereby notify you that as of [EFFECTIVE DATE], a shelf registration with respect to [DESCRIPTION AND CUSIP NUMBER OF NEW SECURITIES] (the "New Securities") was declared effective by the Securities and Exchange Commission. Issuer and Agent agree that, with the exception of the Representations for the Rule 144A Securities [and the Regulation S Securities], the Letter of Representations shall remain in full force and effect with respect to the New Securities. Very truly yours, [NAME OF ISSUER] By: -------------------------------------- [Authorized Officer's Signature] [NAME OF AGENT] By: -------------------------------------- [Authorized Officer's Signature] EX-4.23 11 k64962ex4-23.txt REGISTRATION RIGHTS AGREEMENT DATED 8/6/2001 1 EXHIBIT 4.23 EXECUTION COPY -------------------------------------------------------------------------------- REGISTRATION RIGHTS AGREEMENT DATED AS OF AUGUST 6, 2001 BY AND AMONG PULTE HOMES, INC. AND SALOMON SMITH BARNEY INC. AS THE INITIAL PURCHASER REPRESENTATIVE FOR ITSELF AND THE INITIAL PURCHASERS NAMED ON SCHEDULE A ATTACHED HERETO -------------------------------------------------------------------------------- 2 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of August 6, 2001 by and among PULTE HOMES, INC., a Michigan corporation (the "Company"), SALOMON SMITH BARNEY INC. (the "Initial Purchaser Representative") and each of the other initial purchasers named on Schedule A attached hereto (together with the Initial Purchaser Representative, the "Initial Purchasers"). This Agreement is made pursuant to the Purchase Agreement dated August 1, 2001 by and between the Company and the Initial Purchaser Representative, as representative of the Initial Purchasers (the "Purchase Agreement"), which provides for the sale by the Company to the Initial Purchasers of $500,000,000 aggregate principal amount of the Company's Series A 7 % Senior Notes due 2011 (the "Securities"). In order to induce the Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the Initial Purchasers' obligations thereunder, the Company has agreed to provide to the Initial Purchasers and their respective direct and indirect transferees and assigns the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement. In consideration of the foregoing, the parties hereto agree as follows: 1. Definitions. As used in this Agreement, the following capitalized defined terms shall have the following meanings: "1933 Act" shall mean the Securities Act of 1933, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder. "1934 Act" shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder. "Additional Interest" shall have the meaning set forth in Section 2(e) hereof. "Additional Interest Payment Date" shall have the meaning set forth in Section 2(e) hereof. "Closing Time" shall mean August 6, 2001. "Company" shall have the meaning set forth in the preamble to this Agreement and also includes the Company's successors. "Depositary" shall mean The Depository Trust Company, or any other depositary appointed by the Company, including any agent thereof; provided, however, that any such depositary must at all times have an address in the Borough of Manhattan, in the City of New York. 3 "Exchange Offer" shall mean the exchange offer by the Company of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof. "Exchange Offer Registration" shall mean a registration under the 1933 Act effected pursuant to Section 2(a) hereof. "Exchange Offer Registration Statement" shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) covering the Registrable Securities, and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed to be incorporated by reference therein. "Exchange Securities" shall mean the Series B 7 % Senior Notes due 2011 issued by the Company under the Indenture containing terms identical to the Securities (except that (i) interest thereon shall accrue from the last date to which interest has been paid or duly provided for on the Securities or, if no such interest has been paid or duly provided for, from the Interest Accrual Date, (ii) provisions relating to an increase in the stated rate of interest thereon upon the occurrence of a Registration Default shall be eliminated, (iii) the transfer restrictions and legends relating to restrictions on ownership and transfer thereof as a result of the issuance of the Securities without registration under the 1933 Act shall be eliminated, (iv) the denominations thereof shall be $1,000 and integral multiples of $1,000 and (v) all of the Exchange Securities will be represented by one or more global Exchange Securities in book-entry form unless exchanged for Exchange Securities in definitive certificated form under the circumstances provided in the Indenture) to be offered to Holders of Registrable Securities in exchange for Registrable Securities pursuant to the Exchange Offer. "Holders" shall mean (i) the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become registered owners of Registrable Securities under the Indenture and (ii) each Participating Broker-Dealer that holds Exchange Securities for so long as such Participating Broker-Dealer is required to deliver a Prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities. "Indenture" shall mean the Indenture, dated as of October 24, 1995, as amended and 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 and the Indenture Supplement dated as of the date hereof, each between the Company and Bank One Trust Company, National Association, as Trustee, as the same may be further amended or supplemented from time to time in accordance with the terms thereof. "Inspectors" shall have the meaning set forth in Section 3(q). 3 4 "Interest Accrual Date" means February 1, 2002. "Initial Purchaser(s)" shall have the meaning set forth in the preamble of this Agreement. "Initial Purchaser Representative" shall have the meaning set forth in the preamble of this Agreement. "Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of Registrable Securities outstanding, excluding Exchange Securities referred to in clause (ii) of the definition of "Holders" above; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities or Exchange Securities is required hereunder, Registrable Securities and Exchange Securities held by the Company or any of its affiliates (as such term is defined in Rule 405 under the 1933 Act) shall be disregarded in determining whether such consent or approval was given by the Holders of such required percentage. "NASD" shall mean the National Association of Securities Dealers, Inc. "Notifying Broker-Dealer" shall have the meaning set forth in Section 3(h). "Participating Broker-Dealer" shall have the meaning set forth in Section 3(h). "Person" shall mean an individual, partnership, joint venture, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. "Private Exchange Securities" shall have the meaning set forth in Section 2(a) hereof. "Prospectus" shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to a prospectus, including post-effective amendments, and in each case including all material incorporated or deemed to be incorporated by reference therein. "Purchase Agreement" shall have the meaning set forth in the preamble to this Agreement. "Registrable Securities" shall mean the Securities; provided, however, that any Securities shall cease to be Registrable Securities when (i) a Registration Statement with respect to such Securities shall have been declared effective under the 1933 Act and such Securities shall have been disposed of pursuant to such Registration Statement, (ii) such Securities shall have been sold to the public pursuant to Rule 144(k) (or any similar provision then in force, but not rule 4 5 144A) under the 1933 Act, (iii) such Securities shall have ceased to be outstanding, (iv) such Securities have been exchanged for Exchange Securities which have been registered pursuant to the Exchange Offer Registration Statement upon consummation of the Exchange Offer unless, in the case of any Exchange Securities referred to in this clause (iv), such Exchange Securities are held by Participating Broker-Dealers or otherwise are not freely tradeable without any limitations or restrictions under the 1933 Act (in which case such Exchange Securities will be deemed to be Registrable Securities until such time as such Exchange Securities are sold to a purchaser in whose hands such Exchange Securities are freely tradeable without any limitations or restrictions under the 1933 Act) or (v) such Securities have been exchanged for Private Exchange Securities pursuant to this Agreement (in which case such Private Exchange Securities will be deemed to be Registrable Securities until such time as such Private Exchange Securities are sold to a purchaser in whose hands such Private Exchange Securities are freely tradeable without any limitation or restrictions under the 1933 Act). "Registration Default" shall have the meaning set forth in Section 2(e). "Registration Expenses" shall mean any and all expenses incident to performance of or compliance by the Company with this Agreement, including without limitation: (i) all SEC, stock exchange or NASD registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state or other securities or blue sky laws and compliance with the rules of the NASD (including reasonable fees and disbursements of counsel for any underwriters or Holders in connection with qualification of any of the Exchange Securities or Registrable Securities under state or other securities or blue sky laws and any filing with and review by the NASD), (iii) all expenses of any Persons in preparing, printing and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements, certificates representing the Securities or Exchange Securities and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and expenses incurred in connection with the listing, if any, of any of the Securities, Private Exchange Securities (if any) or Exchange Securities on any securities exchange or exchanges or on any quotation system, (vi) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vii) the fees and disbursements of counsel for the Company and the fees and expenses of independent public accountants for the Company or for any other Person, business or assets whose financial statements are included in any Registration Statement or Prospectus, including the expenses of any special audits or "cold comfort" letters required by or incident to such performance or compliance, (viii) the fees and expenses of a "qualified independent underwriter" as defined by Conduct Rule 2720 of the NASD (if required by the NASD rules) and the fees and disbursements of its counsel, (ix) the fees and expenses of the Trustee, any registrar, any depositary, any paying agent, any escrow agent or any custodian, in each case including fees and disbursements of their respective counsel, (x) fees and expenses of all other Persons retained by the Company, (xi) internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees of the Company performing legal or accounting duties), (xii) the expense of an annual audit, and (xiii) in the case of an underwritten offering, any fees 5 6 and disbursements of the underwriters customarily paid by issuers or sellers of securities and the fees and expenses of any special experts retained by the Company in connection with any Registration Statement but excluding (except as otherwise provided herein) fees of counsel to the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder; provided, however, in the event the Majority Holders designate in writing one counsel to act as counsel to the Holders in connection with any Registration Statement, the Company shall pay all fees and disbursements of such counsel. "Registration Statement" shall mean any registration statement of the Company relating to any offering of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement (including, without limitation, any Exchange Offer Registration Statement and any Shelf Registration Statement), and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed to be incorporated by reference therein. "SEC" shall mean the Securities and Exchange Commission. "Securities" shall have the meaning set forth in the preamble to this Agreement. "Shelf Registration" shall mean a registration effected pursuant to Section 2(b) hereof for an offering to be made on a continuing basis pursuant to Rule 415 under the 1933 Act covering all of the Registrable Securities on Form S-1 or another appropriate form permitting registration of such Registrable Securities for resale by such Holders in the manner designated by such Holders. "Shelf Registration Statement" shall mean a "shelf" registration statement of the Company pursuant to the provisions of Section 2(b) of this Agreement which covers all of the Registrable Securities or Private Exchange Securities (if any), as the case may be, on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed to be incorporated by reference therein. "Subsidiary Guarantor" shall mean any subsidiary of the Company that guarantees the obligations of the Company under the Securities and the Indenture. "TIA" shall mean the Trust Indenture Act of 1939, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder. "Trustee" shall mean the trustee with respect to the Securities, the Private Exchange Securities (if any) and the Exchange Securities under the Indenture. 6 7 "Underwriter" shall have the meaning set forth in Section 5(a). For purposes of this Agreement, (i) all references in this Agreement to any Registration Statement, preliminary prospectus or Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system; (ii) all references in this Agreement to financial statements and schedules and other information which is "contained", "included" or "stated" in any Registration Statement, preliminary prospectus or Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated or deemed to be incorporated by reference in such Registration Statement, preliminary prospectus or Prospectus, as the case may be; (iii) all references in this Agreement to amendments or supplements to any Registration Statement, preliminary prospectus or Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act which is incorporated or deemed to be incorporated by reference in such Registration Statement, preliminary prospectus or Prospectus, as the case may be; (iv) all references in this Agreement to Rule 144, Rule 144A or Rule 405 under the 1933 Act, and all references to any sections or subsections thereof or terms defined therein, shall in each case include any successor provisions thereto; and (v) all references in this Agreement to days (but not to business days) mean calendar days. 2. Registration Under the 1933 Act. (a) Exchange Offer Registration. The Company shall (and, if required, shall cause any then existing Subsidiary Guarantor to) (A) file with the SEC within 120 days of the Closing Time an Exchange Offer Registration Statement covering the offer by the Company to the Holders to exchange all of the Registrable Securities for a like aggregate principal amount of Exchange Securities, (B) use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to be declared effective by the SEC no later than the 180th day after the Closing Time, (C) use its commercially reasonable efforts to cause such Registration Statement to remain effective until the closing of the Exchange Offer and (D) use its commercially reasonable efforts to consummate the Exchange Offer no later than 30 days after the effective date of the Exchange Offer Registration Statement. Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, acquires the Exchange Securities in the ordinary course of such Holder's business and has no arrangements or understandings with any Person to participate in the Exchange Offer for the purpose of distributing such Exchange Securities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the 1933 Act or under the securities or blue sky laws of the states of the United States. In connection with the Exchange Offer, the Company shall: 7 8 (i) promptly mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (ii) keep the Exchange Offer open for not less than 20 business days (or longer if required by applicable law) after the date notice thereof is mailed to the Holders and, during the Exchange Offer, offer to all Holders who are legally eligible to participate in the Exchange Offer the opportunity to exchange their Registrable Securities for Exchange Securities; (iii) use the services of the Depositary for the Exchange Offer; (iv) permit Holders to withdraw tendered Registrable Securities at any time prior to the close of business, New York City time, on the last business day on which the Exchange Offer shall remain open, by sending to the institution specified in the Prospectus or the related letter of transmittal or related documents a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing its election to have such Securities exchanged; and (v) otherwise comply with all applicable laws relating to the Exchange Offer. If, at or prior to the consummation of the Exchange offer, the Initial Purchasers hold any Securities acquired by them and having the status of an unsold allotment in the initial distribution, the Company shall, upon the request of the Initial Purchasers, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to Initial Purchasers in exchange for such Securities a like aggregate principal amount of debt securities of the Company that are identical (except that such debt securities shall be subject to transfer restrictions and shall bear a legend relating to restrictions on ownership and transfer as a result of the issuance thereof without registration under the 1933 Act, shall provide for the payment of Additional Interest and shall be issuable in denominations of $100,000 in integral multiples of $1,000 in excess thereof) to the Exchange Securities (the "Private Exchange Securities"). The Company shall use its best efforts to have the Private Exchange Securities bear the same CUSIP number as the Exchange Securities and, if unable to do so, the Company will, at such time as any Private Exchange Security ceases to be a "restricted security" within the meaning of Rule 144 under the 1933 Act, permit any such Private Exchange Security to be exchanged for a like aggregate principal amount of Exchange Securities. The Exchange Securities and the Private Exchange Securities (if any) shall be issued under the Indenture, which shall be qualified under the TIA. The Indenture shall provide that the Exchange Securities, the Private Exchange Securities (if any) and the Securities shall vote and consent together on all matters as a single class and shall constitute a single series of debt securities issued under the Indenture. 8 9 As soon as practicable after the close of the Exchange Offer, the Company shall: (i) accept for exchange all Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which is an exhibit thereto; (ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities so accepted for exchange by the Company; and (iii) cause the Trustee promptly to authenticate and deliver Exchange Securities to each Holder of Registrable Securities equal in principal amount to the principal amount of the Registrable Securities of such Holder so accepted for exchange. Interest on each Exchange Security and Private Exchange Security (if any) will accrue from the last date on which interest was paid or duly provided for on the Securities surrendered in exchange therefor or, if no interest has been paid or duly provided for on such Securities, from the Interest Accrual Date. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer, or the making of any exchange by a Holder, does not violate any applicable law or any applicable interpretation of the staff of the SEC and (ii) that the Holders tender the Registrable Securities to the Company in accordance with the Exchange Offer. Each Holder of Registrable Securities (other than Participating Broker-Dealers) who wishes to exchange such Registrable Securities for Exchange Securities in the Exchange Offer shall have represented that (i) it is not an affiliate (as defined in Rule 405 under the 1933 Act) of the Company, or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the 1933 Act to the extent applicable, (ii) any Exchange Securities to be received by it will be acquired in the ordinary course of business and (iii) at the time of the commencement of the Exchange Offer, it has no arrangement with any Person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange Securities, and it shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the 1933 Act available. To the extent permitted by law, the Company shall inform the Initial Purchasers of the names and addresses of the Holders of Securities to whom the Exchange Offer is made and, to the extent such information is available to the Company, the names and addresses of the beneficial owners of such Securities, and the Initial Purchasers shall have the right to contact such Holders and beneficial owners and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. (b) Shelf Registration. (i) If, because of any change in law or applicable interpretations thereof by the staff of the SEC, the Company is not permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof, (ii) if for any other reason (A) the Exchange Offer Registration Statement is not declared effective within 180 days following the Closing Time or (B) the Exchange Offer is not consummated within 30 days after effectiveness of the Exchange Offer Registration Statement, (iii) if any Holder (other than an Initial Purchaser holding 9 10 Securities acquired directly from the Company) is not eligible to participate in the Exchange Offer or elects to participate in the Exchange Offer but does not receive Exchange Securities which are freely tradeable without any limitations or restrictions under the 1933 Act or any applicable state securities or blue sky laws, (iv) upon the request of any Initial Purchaser within 60 days following the consummation of the Exchange Offer (provided that, in the case of this clause (iv), such Initial Purchaser shall hold Registrable Securities (including, without limitation, Private Exchange Securities) that it acquired directly from the Company), or (v) if in the Majority Holders' reasonable judgment, the interests of Holders taken as a whole, would be materially adversely affected by consummation of an Exchange Offer, the Company shall (and shall cause any then existing Subsidiary Guarantor), at its cost: (A) as promptly as practicable, but no later than (a) the 180th day after the Closing Time or (b) the 30th day after any such filing obligation arises, whichever is later, file with the SEC a Shelf Registration Statement relating to the offer and sale of the Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by the Majority Holders of such Registrable Securities and set forth in such Shelf Registration Statement; (B) use its best efforts to cause such Shelf Registration Statement to be declared effective by the SEC as promptly as practicable, but in no event later than the 210th day after the Closing Time (or, in the case of a request by any Initial Purchaser pursuant to clause (iv) above, within 30 days after such request). In the event that the Company is required to file a Shelf Registration Statement pursuant to clause (iii) or (iv) above, the Company shall file and use its best efforts to have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by such Holder or such Initial Purchaser, as applicable; (C) use its best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required, in order to permit the Prospectus forming part thereof to be usable by Holders for a period of two years after the latest date on which any Securities are originally issued by the Company (subject to extension pursuant to the last paragraph of Section 3) or, if earlier, when all of the Registrable Securities covered by such Shelf Registration Statement (i) have been sold pursuant to the Shelf Registration Statement in accordance with the intended method of distribution thereunder or (ii) cease to be Registrable Securities; and (D) notwithstanding any other provisions hereof, ensure that (i) any Shelf Registration Statement and any amendment thereto and any Prospectus forming a part thereof and any supplements thereto comply in all material respects with the 1933 Act and the rules and regulations thereunder, (ii) any Shelf Registration Statement and any amendment thereto 10 11 does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any Prospectus forming part of any Shelf Registration Statement and any amendment or supplement to such Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall not permit any securities other than Registrable Securities to be included in any Shelf Registration Statement. The Company further agrees, if necessary, to supplement or amend the Shelf Registration Statement if reasonably requested by the Majority Holders with respect to information relating to the Holders and otherwise as required by Section 3(b) below, to use its best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as practicable thereafter and to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. (c) Expenses. The Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and 2(b), whether or not the Exchange Offer Registration Statement or Shelf Registration Statement is filed or becomes effective and, in the case of any Shelf Registration Statement, will reimburse the Holders or the Initial Purchasers for the reasonable fees and disbursements of one counsel (in addition to any local counsel) designated in writing by the Majority Holders (or, if a Shelf Registration Statement filed solely pursuant to clause (iv) of the first paragraph of Section 2(b), designated by the Initial Purchaser Representative) to act as counsel for the Holders of the Registrable Securities in connection therewith. Each Holder shall pay all fees and disbursements of its counsel other than as set forth in the preceding sentence or in the definition of Registration Expenses and all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to a Shelf Registration Statement. The Company shall pay all documentary, stamp, transfer or other transactional taxes attributable to the issuance or delivery of the Exchange Securities or Private Exchange Securities in exchange for the Registrable Securities. (d) Effective Registration Statement. (i) The Company shall be deemed not to have used its commercially reasonable efforts to cause the Exchange Offer Registration Statement or any Shelf Registration Statement, as the case may be, to become, or to remain, effective during the requisite periods set forth herein if the Company voluntarily takes any action that could reasonably be expected to result in any such Registration Statement not being declared effective or remaining effective or in the Holders of Registrable Securities (including, under the circumstances contemplated by Section 3(h) hereof, Exchange Securities) covered thereby not being able to exchange or offer and sell such Registrable Securities during 11 12 that period unless (A) such action is required by applicable law or (B) such action is taken by the Company in good faith and for valid business reasons (but not including avoidance of the Company's obligations hereunder), including the acquisition or divestiture of assets or a material corporate transaction or event so long as the Company promptly complies with the notification requirements of Section 3(m) hereof, if applicable. Nothing in this paragraph shall prevent the accrual of Additional Interest on any Securities or Exchange Securities. (ii) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof shall not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement shall be deemed not to have been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. (iii) During any 365-day period, the Company may, by notice as described in Section 3(g), suspend the availability of a Shelf Registration Statement (and, if the Exchange Offer Registration Statement is being used in connection with the resale of Exchange Securities by Participating Broker-Dealers as contemplated by Section 3(h), the Exchange Offer Registration Statement) and the use of the related Prospectus for a period of up to 30 consecutive days (except for the consecutive 30-day period immediately prior to final maturity of the Securities), but no more than an aggregate of 60 days during any 365-day period, upon the happening of any event or the discovery of any fact referred to in Section 3(g)(vi), but subject to compliance by the Company with its obligations under the last paragraph of Section 3. (e) Increase in Interest Rate. In the event that: (i) the Exchange Offer Registration Statement is not filed with the SEC on or prior to the 120th day following the Closing Time, or (ii) the Exchange Offer Registration Statement is not declared effective by the SEC on or prior to the 180th day following the Closing Time, or (iii) the Exchange offer is not consummated on or prior to the 30th day following the effective date of the Exchange Offer Registration Statement, or (iv) if required, a Shelf Registration Statement is not filed with the SEC on or prior to (A) the 180th day following the Closing Time or (B) the 30th day after the filing obligation arises, whichever is later, or 12 13 (v) if required, a Shelf Registration Statement is not declared effective on or prior to the 210th day following the Closing Time (or, if a Shelf Registration Statement is required to be filed upon the request of the Initial Purchasers, within 30 days after such request), or (vi) a Shelf Registration Statement is declared effective by the SEC, but such Shelf Registration Statement ceases to be effective or such Shelf Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Registrable Securities for any reason, except in accordance with Section 2(d)(iii) hereof, or (vii) the Exchange Offer Registration Statement is declared effective by the SEC but, if the Exchange Offer Registration Statement is being used in connection with the resale of Exchange Securities as contemplated by Section 3(h)(B) of this Agreement, the Exchange Offer Registration Statement ceases to be effective or the Exchange Offer Registration Statement or the Prospectus included therein ceases to be usable in connection with resales of Exchange Securities for any reason during the 180-day period referred to in Section 3(h)(B) of this Agreement (as such period may be extended pursuant to the last paragraph of Section 3 of this Agreement) and either (A) the aggregate number of days in any consecutive 365-day period for which the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable exceeds 60 days, (B) the Exchange Offer Registration Statement or such Prospectus shall not be effective or usable for more than two periods (regardless of duration) in any consecutive 365-day period or (C) the Exchange Offer Registration Statement or the Prospectus shall not be effective or usable for a period of more than 30 consecutive days, (each of the events referred to in clauses (i) through (vii) above being hereinafter called a "Registration Default"), the per annum interest rate borne by the Registrable Securities shall be increased ("Additional Interest") by one-quarter of one percent (0.25%) per annum, immediately following such 120-day period in the case of clause (i) above, immediately following such 180-day period in the case of clause (ii) above, immediately following such 30-day period in the case of clause (iii) above, immediately following any such 180-day period or 30-day period, whichever ends later, in the case of clause (iv) above, immediately following any such 210-day period or 30-day period, whichever ends first, in the case of clause (v) above, immediately following the 30th consecutive day or the 60th day in any consecutive 365-day period, whichever occurs first, that a Shelf Registration Statement shall not be effective or a Shelf Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vi) above, or immediately following the 60th day in any consecutive 365-day period, as of the first day of the third period in any consecutive 365-day period or immediately following the 30th consecutive day, whichever occurs first, that the Exchange Offer Registration statement shall not be effective or the Exchange Offer Registration Statement or the Prospectus included therein shall not be usable as contemplated by clause (vii) above, which rate will be increased by an additional one-quarter of one percent (0.25%) per annum immediately following each 90-day period that any Additional Interest continues to accrue under any circumstances; provided that the aggregate increase in such annual interest rate may in no event exceed 13 14 three-quarters of one percent (0.75%) per annum. Upon the filing of the Exchange offer Registration Statement after the 120-day period described in clause (i) above, the effectiveness of the Exchange Offer Registration Statement after the 180-day period described in clause (ii) above, the consummation of the Exchange Offer after the 30-day period described in clause (iii) above, the filing of the Shelf Registration Statement after the 180-day period or 30-day period day, as the case may be, described in clause (iv) above, the effectiveness of a Shelf Registration Statement after the 210-day period or 30-day period, as the case may be, described in clause (v) above, or the Shelf Registration Statement once again being effective or the Shelf Registration Statement and the Prospectus included therein becoming usable in connection with resales of Registrable Securities, as the case may be, in the case of clause (vi) above, or the Exchange Offer Registration Statement once again becoming effective or the Exchange Offer Registration Statement and the Prospectus included therein becoming usable in connection with resales of Exchange Securities, as the case may be, in the case of clause (vii) thereof, such Additional Interest shall cease to accrue on the Registrable Securities from the date of such filing, effectiveness, consummation or resumption of effectiveness or useability, as the case may be, so long as no other Registration Default shall have occurred and shall be continuing at such time and the Company is otherwise in compliance with this paragraph; provided, however, that, if after any such Additional Interest ceases to accrue, one or more Registration Defaults shall again occur, such Additional Interest shall again begin to accrue pursuant to the foregoing provisions. The Company shall notify the Trustee within three business days after the occurrence of each Registration Default. Additional Interest payable with respect to any Registrable Securities shall be due and payable on each February 1 and August 1 (each, an "Additional Interest Payment Date"). If Additional Interest has accrued on such Registrable Security during the semi-annual period immediately preceding such Additional Interest Payment Date, Additional Interest shall be payable to the Person in whose name such Registrable Security (or one or more predecessor Securities) is registered at the close of business on the January 15 or July 15, whether or not a business day, next preceding such Additional Interest Payment Date. Each obligation to pay Additional Interest shall be deemed to accrue from and including the day following the occurrence of the applicable Registration Default. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Registrable Securities, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such semi-annual period (determined on the basis of a 365-day year comprised of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360. Anything herein to the contrary notwithstanding, any Holder who was, at the time the Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, its Securities for Exchange Securities in the Exchange Offer will not be entitled to receive any Additional Interest. For purposes of clarity, it is hereby acknowledged and agreed that, under current interpretations of law by the SEC, the Initial Purchasers holding unsold allotments of 14 15 Securities acquired from the Company are not eligible to participate in the Exchange Offer. (f) Specific Enforcement. Without limiting the remedies available to the Initial Purchasers and the Holders, the Company acknowledges that any failure by the Company to comply with its obligations under Sections 2(a) and 2(b) hereof may result in material irreparable injury to the Initial Purchasers, the Holders or the Participating Broker-Dealers for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, any Initial Purchaser, any Holder and any Participating Broker-Dealer may obtain such relief as may be required to specifically enforce the Company's obligations under Sections 2(a) and 2(b). (g) Hold-Back Agreements. The Company agrees that it will not effect any public or private sale or distribution (including a sale pursuant to Regulation D under the 1933 Act) of any securities the same as or similar to those covered by a Registration Statement filed pursuant to Section 2 hereof, or any securities convertible into or exchangeable or exercisable for such securities, during the 10 days prior to, and during the 90-day period beginning on, (A) the effective date of any Registration Statement filed pursuant to Section 2 hereof, unless the Majority Holders to be included in such Registration Statement consent, or (B) the commencement of an underwritten public distribution of Registrable Securities, if the managing underwriter thereof so requests. 3. Registration Procedures. In connection with the obligations of the Company with respect to the Registration Statements pursuant to Sections 2(a) and 2(b) hereof, the Company shall (and shall, as applicable, cause any then existing Subsidiary Guarantor to): (a) prepare and file with the SEC a Registration Statement or, if required, Registration Statements, within the time periods specified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall be selected by the Company, (ii) shall, in the case of a Shelf Registration Statement, be available for the sale of the Registrable Securities by the selling Holders thereof and (iii) shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the SEC to be filed therewith, and use its best efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2 hereof; provided that, if (1) a Shelf Registration Statement is filed pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the 1933 Act by any Participating Broker-Dealer who seeks to sell Exchange Securities for such period of time as such Participating Broker-Dealer must comply with such requirements in order to resell the Exchange Securities, before filing any Registration Statement or Prospectus or any amendments or supplements thereto the Company shall, if requested, furnish to and afford the Holders of the Registrable Securities to be registered pursuant to such Shelf Registration Statement, or each Participating Broker-Dealer and to their counsel and the managing underwriters, if any, a reasonable opportunity to review 15 16 copies of all such documents (including copies of any documents to be incorporated or deemed to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five business days prior to such filing). The Company shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto if the Majority Holders of Registrable Securities covered by such Registration Statement, or any such Participating Broker-Dealer, as the case may be, their counsel, or the managing underwriters, if any, shall reasonably object; (b) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary under applicable law to keep such Registration Statement continuously effective for the applicable period; cause each Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the 1933 Act; and comply with the provisions of the 1933 Act and the 1934 Act with respect to the disposition of all Securities covered by each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof; (c) use its best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities or the Exchange Securities to be sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued, to use its best efforts to obtain the withdrawal of any such order at the earliest possible date; (d) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities, at least ten business days prior to filing, that a Shelf Registration Statement with respect to the Registrable Securities is being filed and advising such Holders that the distribution of Registrable Securities will be made in accordance with the method elected by the Majority Holders; (ii) furnish to each Holder of Registrable Securities, to counsel for the Initial Purchasers, to counsel for the Holders and to each underwriter of an underwritten offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder, counsel or underwriter may reasonably request, including financial statements and schedules and, if such Holder, counsel or underwriter so requests, all exhibits (including those incorporated by reference) in order to facilitate the public sale or other disposition of the Registrable Securities; and (iii) subject to the last paragraph of this Section 3, consent to the use of the Prospectus, including each preliminary Prospectus, or any amendment or supplement thereto by each of the Holders and underwriters of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by any Prospectus or any amendment or supplement thereto; 16 17 (e) use its best efforts to register or qualify the Registrable Securities under all applicable state securities or "blue sky" laws of such jurisdictions as any Holder of Registrable Securities covered by a Registration Statement and each underwriter of an underwritten offering of Registrable Securities shall reasonably request, to cooperate with the Holders and the underwriters of any Registrable Securities in connection with any filings required to be made with the NASD, to keep each such registration or qualification effective during the period such Registration Statement is required to be effective and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; provided, however, that the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(e) or (ii) take any action which would subject it to general service of process or taxation in any such jurisdiction if it is not then so subject; (f) use its best efforts to cause the Registrable Securities covered by any Registration Statement to be registered with or approved by such governmental agencies or authorities as may be necessary to enable the Holder or Holders thereof or the underwriter, if any, to consummate the disposition of such Registrable Securities, except as may be required solely as a consequence of the nature of such Holder's business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the grating of such approvals; (g) in the case of a Shelf Registration, notify each Holder of Registrable Securities and counsel for such Holders promptly and, if requested by such Holder or counsel, confirm such advice in writing promptly (i) when a Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of any request by the SEC or any state securities authority for post-effective amendments or supplements to a Registration Statement or Prospectus or for additional information after a Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to such offering cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (vi) of the happening of any event or the discovery of any facts during the period a Shelf Registration Statement is effective which is contemplated in Section 2(d)(i)(A) or 2(d)(i)(B) or which makes any statement made in such Shelf Registration Statement or the related Prospectus untrue in any material respect or which constitutes an omission to state a material fact in such Shelf Registration Statement or 17 18 Prospectus and (vii) of any determination by the Company that a post-effective amendment to a Registration Statement would be appropriate. Without limitation to any other provisions of this Agreement, the Company agrees that this Section 3(g) shall also be applicable, mutatis mutandis, with respect to the Exchange Offer Registration Statement and the Prospectus included therein to the extent that such Prospectus is being used by Participating Broker-Dealers as contemplated by Section 3(h); (h) (A) in the case of an Exchange Offer, (i) include in the Exchange offer Registration Statement (A) a "Plan of Distribution" section (which section shall be reasonably acceptable to the Initial Purchaser Representative) covering the use of the Prospectus included in the Exchange Offer Registration Statement by broker-dealers who have exchanged their Registrable Securities for Exchange Securities for the resale of such Exchange Securities and (B) a statement to the effect that any such broker-dealers who wish to use the related Prospectus in connection with the resale of Exchange Securities acquired as a result of market-making or other trading activities will be required to notify the Company to that effect, together with instructions for giving such notice (which instructions shall include a provision for giving such notice by checking a box or making another appropriate notation on the related letter of transmittal) (each such broker-dealer who gives notice to the Company as aforesaid being hereinafter called a "Notifying Broker-Dealer"), (ii) furnish to each Notifying Broker-Dealer who desires to participate in the Exchange Offer, without charge, as many copies of each Prospectus included in the Exchange Offer Registration Statement, including any preliminary prospectus, and any amendment or supplement thereto, as such broker-dealer may reasonably request, (iii) include in the Exchange Offer Registration Statement a statement that any broker-dealer who holds Registrable Securities acquired for its own account as a result of market-making activities or other trading activities (a "Participating Broker-Dealer"), and who receives Exchange Securities for Registrable Securities pursuant to the Exchange Offer, may be a statutory underwriter and must deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities, (iv) subject to the last paragraph of this Section 3, consent to the use of the Prospectus forming part of the Exchange Offer Registration Statement or any amendment or supplement thereto by any Notifying Broker-Dealer in connection with the sale or transfer of Exchange Securities, and (v) include in the letter of transmittal or similar documentation to be executed by an exchange offeree in order to participate in the Exchange Offer the following provision: "If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities, it represents that the Registrable Securities to be exchanged for Exchange Securities were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange 18 19 Securities pursuant to the Exchange Offer; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the 1933 Act." (B) to the extent any Notifying Broker-Dealer participates in the Exchange Offer, (i) the Company shall use its best efforts to maintain the effectiveness of the Exchange Offer Registration Statement for a period of 180 days (subject to extension pursuant to the last paragraph of this Section 3) following the last date on which exchanges are accepted pursuant to the Exchange Offer, and (ii) the Company will comply, insofar as relates to the Exchange Offer Registration Statement, the Prospectus included therein and the offering and sale of Exchange Securities pursuant thereto, with its obligations under Section 2(b)(D), the last paragraph of Section 2(b), Section 3(c), 3(e), 3(g), 3(k), 3(l), 3(m), 3(q) and 3(v), and the last two paragraphs of this Section 3 as if all references therein to a Shelf Registration Statement, the Prospectus included therein and the Holders of Registrable Securities referred, mutatis mutandis, to the Exchange Offer Registration Statement, the Prospectus included therein and the applicable Notifying Broker-Dealers and, for purposes of this Section 3(h), all references in any such paragraphs or sections to the "Majority Holders" shall be deemed to mean, solely insofar as relates to this Section 3(h), the Notifying Broker-Dealers who are the Holders of the majority in aggregate principal amount of the Exchange Securities which are Registrable Securities; (C) to the extent any Notifying Broker-Dealer participates in the Exchange Offer, the Company shall use its best efforts to cause to be delivered at the request of an entity representing such Notifying Broker-Dealer (which entity shall be the Initial Purchaser Representative, unless it elects not to act as such representative), a "cold comfort" letter with respect to the Prospectus in the form existing on the last date on which exchanges are accepted pursuant to the Exchange Offer and with respect to each subsequent amendment or supplement, if any, effected during the period specified in clause (B) above; and (D) the Company shall not be required to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement as would otherwise be contemplated by Section 3(b) or 3(m) hereof, or take any other action as a result of this Section 3(h), for a period exceeding 180 days (subject to extension pursuant to the last paragraph of this Section 3) after the last date on which exchanges are accepted pursuant to the Exchange Offer and Notifying Broker-Dealers shall not be authorized by the Company to, and shall not, deliver such Prospectus after such period in connection with resales contemplated by this Section 3; (i) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers and (ii) in the case of a Shelf Registration, furnish counsel for the Holders of Registrable Securities and counsel for any underwriters of Registrable Securities, copies of any request by the SEC or any state securities authority for amendments or supplements to a 19 20 Registration Statement or Prospectus or for additional information; (j) use its best effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement as soon as practicable and provide immediate notice to each Holder of the withdrawal of any such order; (k) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of each Registration Statement and any post-effective amendments thereto (without documents incorporated or deemed to be incorporated therein by reference or exhibits thereto, unless requested); (l) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and cause such Registrable Securities to be in such denominations (consistent with the provisions of the Indenture) and in a form eligible for deposit with the Depositary and registered in such names as the selling Holders or the underwriters, if any, may reasonably request in writing at least one business day prior to the closing of any sale of Registrable Securities; (m) in the case of a Shelf Registration, upon the occurrence of any event or the discovery of any facts as contemplated by Section 3(g)(vi) hereof, use its best efforts to prepare a supplement or post-effective amendment to a Registration Statement or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable securities, such Prospectus will not contain at the time of such delivery any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify each Holder to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and each Holder hereby agrees to suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or omission. At such time as such public disclosure is otherwise made or the Company determines that such disclosure is not necessary, in each case to correct any misstatement of a material fact or to include any omitted material fact, the Company agrees promptly to notify each Holder of such determination and to furnish each Holder such number of copies of the Prospectus, as amended or supplemented, as such Holder may reasonably request; (n) obtain CUSIP numbers for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of a Registration Statement, and provide the Trustee with any necessary printed or word-processed certificates for the Exchange Securities or Registrable Securities, as the case may be, in a form eligible for deposit with the Depositary; 20 21 (o) (i) cause the Indenture to be qualified under the TIA in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be, (ii) cooperate with the Trustee and the Holders to effect such changes, if any, to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the TIA and (iii) execute, and use its best efforts to cause the Trustee to execute, all documents as may be required to effect such changes, if any, and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; (p) in the case of a Shelf Registration, the Majority Holders of the Registrable Securities registered pursuant to such Shelf Registration Statement shall have the right to direct the Company to effect not more than one underwritten registration and, in connection with such underwritten registration, the Company shall enter into agreements (including underwriting agreements or similar agreements) and take all other customary and appropriate actions (including those reasonably requested by the Majority Holders of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection: (i) make such representations and warranties to the Holders of such Registrable Securities and the underwriters, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings as may be reasonably requested by such Holders and underwriters; (ii) obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, and the Majority Holders of the Registrable Securities being sold) addressed to each selling Holder and the underwriters, covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters; (iii) obtain "cold comfort" letters and updates thereof with respect to such Shelf Registration Statement and the Prospectus included therein, all amendments and supplements thereto and all documents incorporated or deemed to be incorporated by reference therein from the Company's independent certified public accountants and from the independent certified public accountants for any other Person or any business or assets whose financial statements are included or incorporated by reference in the Shelf Registration Statement, each addressed to the underwriters, and use its best efforts to have such letters addressed to the selling Holders of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters to underwriters in connection with similar underwritten offerings and such letters to be delivered at the time of the pricing of such underwritten registration with an 21 22 update to such letter to be delivered at the time of closing of such underwritten registration; (iv) if an underwriting agreement or other similar agreement is entered into, cause the same to set forth indemnification and contributions provisions and procedures substantially equivalent to the indemnification and contributions provisions and procedures set forth in Section 5 hereof with respect to the underwriters and all other parties to be indemnified pursuant to Section 5 hereof or such other indemnification and contributions as shall be satisfactory to the Company, the applicable underwriters and the Majority Holders of the Registrable securities being sold; and (v) deliver such other documents and certificates as may be reasonably requested and as are customarily delivered in similar offerings. The documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be delivered at the closing under any underwriting or similar agreement as and to the extent required thereunder. In the case of any such underwritten offering, the Company shall provide written notice to the Holders of all Registrable Securities of such underwritten offering at least 30 days prior to the filing of a prospectus supplement for such underwritten offering. Such notice shall (x) offer each such Holder the right to participate in such underwritten offering, (y) specify a date, which shall be no earlier than 15 days following the date of such notice, by which such Holder must inform the Company of its intent to participate in such underwritten offering and (z) include the instructions such Holder must follow in order to participate in such underwritten offering; (q) if (1) a Shelf Registration Statement is filed pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the 1933 Act by any Participating Broker-Dealer who seeks to sell Exchange Securities for such period of time as such Participating Broker-Dealer must comply with such requirements in order to resell the Exchange Securities, make available for inspection by any Holder of such Registrable Securities being sold, or each such Participating Broker-Dealer, as the case may be, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney, accountant or other agent retained by any such Holder or each such Participating Broker-Dealer, as the case may be, or underwriter (collectively, the "Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records and pertinent corporate documents of the Company and its subsidiaries as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such Inspector in connection with such Registration Statement. (r) comply with all applicable rules and regulations of the SEC and make generally 22 23 available to the security holders of the Company earnings statements satisfying the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder (or any similar rule promulgated under the 1933 Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effective date of a Registration Statement, which Registration Statement shall cover said 12-month periods; (s) upon consummation of an Exchange Offer or sale of Private Exchange Securities, obtain an opinion of counsel to the Company (in form, scope and substance reasonably satisfactory to the Initial Purchaser Representative), addressed to the Trustee for the benefit of all Holders participating in the Exchange Offer or sale of Private Exchange Securities, as the case may be, to the effect that (i) the Company and the existing Subsidiary Guarantors have duly authorized, executed and delivered the Exchange Securities or the Private Exchange Securities, as the case may be, and the Indenture, and (ii) the Exchange Securities or the Private Exchange Securities, as the case may be, and the Indenture constitute legal, valid and binding obligations of the Company and the existing Subsidiary Guarantors, enforceable against the Company and the existing Subsidiary Guarantors in accordance with their respective terms, except as such enforcement may be subject to customary exceptions; (t) if the Exchange Offer or sale of Private Exchange Securities is to be consummated, upon delivery of the Registrable Securities by the Holders to the Company (or to such other Person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall mark, or cause to be marked, on such Registrable Securities that such Registrable Securities are being cancelled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; provided that in no event shall such Registrable Securities be marked as paid or otherwise satisfied; (u) in the case of a Shelf Registration, make available for inspection by representatives of the Holders of the Registrable Securities and any underwriters participating in any disposition pursuant to a Shelf Registration Statement and any counsel or accountant retained by such Holders or underwriters, all financial statements and other records, documents and properties of the Company reasonably requested by any such Persons, and cause the respective officers, directors, employees, and any other agents of the Company to supply all information reasonably requested by any such Persons in connection with a Shelf Registration Statement; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Initial Purchasers by Salomon Smith Barney Inc. and on behalf of the other parties by one counsel designated by the holders of a majority of the Registrable Securities, and 23 24 provided further that any such records, documents, properties and such information that is designated in writing by the Company, in good faith, as confidential at the time of delivery of such records, documents, properties or information shall be kept confidential by any such representative, underwriter, counsel or accountant and shall be used only in connection with such Shelf Registration Statement, unless such information has become available (not in violation of this Agreement) to the public generally or through a third party without an accompanying obligation of confidentiality, and except that such representative, underwriter, counsel or accountant shall have no liability, and shall not be in breach of this provision, if disclosure of such confidential information is made in connection with a court proceeding or required by law, and the Company shall be entitled to request that such representative, underwriter, counsel or accountant sign a confidentiality agreement to the foregoing effect. Each such person will be required to agree that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company unless and until such is made generally available to the public through no fault or action of such person. Each selling Holder of such Registrable Securities will be required to further agree that it will, upon learning that disclosure of confidential information is necessary, give notice to the Company to allow the Company at its expense to undertake appropriate action to prevent disclosure of the confidential information; (v) (i) in the case of an Exchange Offer, a reasonable time prior to the filing of any Exchange Offer Registration Statement, any Prospectus forming a part thereof, any amendment to an Exchange Offer Registration Statement or amendment or supplement to such Prospectus, provide copies of such documents to the Initial Purchasers, and make such changes in any such documents prior to the filing thereof as the Initial Purchasers or their counsel may reasonably request; (ii) in the case of a Shelf Registration, a reasonable time prior to filing any Shelf Registration Statement, any Prospectus forming a part thereof, any amendment to such Shelf Registration Statement or amendment or supplement to such Prospectus, provide copies of such document to the Holders of Registrable Securities, to the Initial Purchasers, to the underwriter or underwriters, of an underwritten offering of Registrable Securities, and to counsel for any such Holders, Initial Purchasers or underwriters, and make such changes in any such document prior to the filing thereof as the Holders of Registrable Securities, the Initial Purchasers, any such underwriter or underwriters or any of their respective counsel may reasonably request; and (iii) cause the representatives of the Company to be available for discussion of such documents as shall be reasonably requested by the Holders of Registrable Securities, the Initial Purchasers on behalf of such Holders or any underwriter, and shall not at any time make any filing of any such document of which such Holders, the Initial Purchasers on behalf of such Holders, their counsel or any underwriter shall not have previously been advised and furnished a copy or to which such Holders, the Initial Purchasers on behalf of such Holders, their counsel or any underwriter shall reasonably object within a reasonable 24 25 time period; (w) use its best efforts to cause all Registrable Securities to be listed on any securities exchange on which similar debt securities issued by the Company are then listed if requested by the Majority Holders or by the underwriter or underwriters of an underwritten offering of Registrable Securities, if any; (x) use its best efforts to cause the Registrable Securities to be rated by the appropriate rating agencies, if so requested by the Majority Holders of Registrable Securities or by the underwriter or underwriters of an underwritten offering, unless the Registrable Securities are already so rated; (y) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC and, with respect to each Registration Statement and each post-effective amendment, if any, thereto and each filing by the Company of an annual report on Form 10-K, make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least twelve months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; and (z) cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter and its counsel. In the case of a Shelf Registration Statement, the Company may (as a condition to such Holder's participation in the Shelf Registration) require each Holder of Registrable Securities to furnish to the Company such information regarding such Holder and the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In the case of a Shelf Registration Statement, each Holder agrees and, in the event that any Participating Broker-Dealer is using the Prospectus included in the Exchange Offer Registration Statement in connection with the sale of Exchange Securities pursuant to Section 3(h), each such Participating Broker-Dealer agrees that, upon receipt of any notice from the Company of the happening of any event or the discovery of any facts of the kind described in Section 3(g)(ii), 3(g)(iii) or 3(g)(v) through 3(g)(vii) hereof, such Holder or Participating Broker-Dealer, as the case may be, will forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement until receipt by such Holder or Participating Broker-Dealer, as the case may be, of (i) the copies of the supplemented or amended Prospectus contemplated by Section 3(m) hereof or (ii) written notice from the Company that the Shelf Registration Statement or the Exchange Offer Registration Statement, respectively, are once again effective or that no supplement or amendment is required. If so directed by the Company, such Holder or Participating Broker-Dealer, as the case may be, will deliver to the Company (at the Company's expense) all copies in its possession, other than permanent file copies then in its possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. 25 26 Nothing in this paragraph shall prevent the accrual of Additional Interest on any Securities or Exchange Securities. If the Company shall give any such notice to suspend the disposition of Registrable Securities pursuant to the immediately preceding paragraph, the Company shall be deemed to have used its best efforts to keep the Shelf Registration Statement or, in the case of Section 3(h), the Exchange Offer Registration Statement, as the case may be, effective during such period of suspension; provided that (i) such period of suspension shall not exceed the time periods provided in Section 2(d)(iii) hereof and (ii) the Company shall use its best efforts to file and have declared effective (if an amendment) as soon as practicable thereafter an amendment or supplement to the Shelf Registration Statement or the Exchange Offer Registration Statement or both, as the case may be, or the Prospectus included therein and shall extend the period during which the Shelf Registration Statement or the Exchange Offer Registration Statement or both, as the case may be, shall be maintained effective pursuant to this Agreement (and, if applicable, the period during which Participating Broker-Dealers may use the Prospectus included in the Exchange Offer Registration Statement pursuant to Section 3(h) hereof) by the number of days during the period from and including the date of the giving of such notice to and including the earlier of the date when the Holders or Participating Broker-Dealers, respectively, shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions and the effective date of written notice from the Company to the Holders or Participating Broker-Dealers, respectively, that the Shelf Registration Statement or the Exchange Offer Registration Statement, respectively, are once again effective or that no supplement or amendment is required. 4. Underwritten Registrations. If any of the Registrable Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will manage the offering will be selected by the Majority Holders of such Registrable Securities included in such offering and shall be reasonably acceptable to the Company. No Holder of Registrable Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder's Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. 5. Indemnification and Contribution. (a) The Company agrees (and shall cause each Subsidiary Guarantor, jointly and severally to agree) to indemnify and hold harmless each Initial Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who participates in an offering of Registrable Securities (each, an "Underwriter"), each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, and their respective affiliates, directors, officers, partners, employees and 26 27 agents, to the fullest extent lawful, as follows: (i) from and against any and all loss, liability, claim, damage, cost and expense whatsoever, as incurred, directly or indirectly caused by, related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto), including all documents incorporated or deemed to be incorporated therein by reference, pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, form of prospectus or Prospectus (or any amendment or supplement thereto) or any omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) from and against any and all loss, liability, claim, damage, cost and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 5(d) below) any such settlement is effected with the written consent of the Company; and (iii) from and against any and all expense whatsoever, as incurred (including, subject to Section 5(c) below, the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any court or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage, cost or expense to the extent solely caused by any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with respect to such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be, expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). (b) Each Holder, severally but not jointly, agrees to indemnify and hold harmless the Company, each Initial Purchaser, each Participating Broker-Dealer, each Underwriter and each other selling Holder and each Person, if any, who controls the Company, any Initial Purchaser, any Underwriter, any Participating Broker-Dealer or any other selling Holder within the meaning 27 28 of Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any and all loss, liability, claim, damage, cost and expense described in the indemnity contained in Section 5(a) hereof, as incurred, arising out of or based upon any untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto), but only to the extent such loss, liability, claim, damage, cost or expense is finally judicially determined by a court of competent jurisdiction in a final, unappealable order to have resulted solely from an untrue statement or omission or alleged untrue statement or omission contained in or omitted from written information with respect to such Holder furnished to the Company by such Holder expressly for use in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement. (c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. Counsel to the respective indemnified parties shall be selected as follows: (i) counsel to the Initial Purchasers and all Persons, if any, who control the Initial Purchasers within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by Merrill Lynch; (ii) counsel to the Company, its directors, each of its officers who signed the Registration Statement and all Persons, if any, who control the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Company; (iii) counsel to the Holders (other than the Initial Purchasers or Participating Broker-Dealers) and all Persons, if any, who control any Holders (other than the Initial Purchasers or Participating Broker-Dealers) within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Holders who held or hold, as the case may be, a majority in aggregate principal amount of the Registrable Securities held by all such Holders; (iv) counsel to the Underwriters of any particular offering of Registrable Securities and all Persons, if any, who control any such Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by such Underwriters; and (v) counsel to the Participating Broker-Dealers (other than the Initial Purchasers) and all Persons, if any, who control any such Participating Broker-Dealer within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Participating Broker-Dealers who held or hold, as the case may be, a majority in aggregate principal amount of the Exchange Securities referred to in Section 3(h) hereof held by all such Participating Broker-Dealers. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying party or parties be liable for (A) the fees and expenses of more than one counsel (in addition to any local 28 29 counsel) separate from the indemnifying parties' own counsel for the Initial Purchasers and all other Persons referred to in clause (i) of this paragraph, (B) the fees and expenses of more than one counsel (in addition to any local counsel) separate from the indemnifying parties' own counsel for the Company and all other Persons referred to in clause (ii) of this paragraph, (C) the fees and expenses of more than one counsel (in addition to any local counsel) separate from the indemnifying parties' own counsel for all Holders (other than the Initial Purchasers or Participating Broker-Dealers) and all other Persons referred to in clause (iii) of this paragraph, (D) the fees and expenses of more than one counsel (in addition to any local counsel) separate from the indemnifying parties' own counsel for all Underwriters of any particular offering of Registrable Securities and all other Persons referred to in clause (iv) of this paragraph, and (E) the fees and expenses of more than one counsel (in addition to any local counsel) separate from the indemnifying parties' own counsel for all Participating Broker-Dealers (other than the Initial Purchasers) and all other Persons referred to in clause (v) of this paragraph, in each case in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 5 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 5(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party shall not be liable for any settlement of the nature contemplated by Section 5(a)(ii) effected without its written consent if such indemnifying party (x) reimburses such indemnified party in accordance with such request to the extent that the indemnifying party in its judgment considers such request to be reasonable and (y) provides written notice to the indemnified party stating the reason it deems the unpaid balance unreasonable, in each case no later than 45 days after receipt by such indemnifying party of the aforesaid request from the indemnified party. (e) If the indemnification provided for in this Section 5 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, 29 30 damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party or parties on the one hand and the indemnified party or parties on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or parties or such indemnified party or parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (f) The Company, the Holders, and the Initial Purchasers agree that it would not be just or equitable if contribution pursuant to this Section 5 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (e) above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 5 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 5, no Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which Registrable Securities sold by it were offered exceeds the amount of any damages that such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5, each Person, if any, who controls an Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be, and each director of the Company, each officer of the Company who signed the Registrations Statement and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The respective obligations of the Initial Purchasers, Holders, Participating Broker-Dealers and Underwriters to contribute pursuant to this Section 5 are several in proportion to the principal 30 31 amount of Securities purchased by them and not joint. The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter or any Person controlling any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, or by or on behalf of the Company, its officers or directors or any Person controlling the Company, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities or Exchange Securities pursuant to a Shelf Registration Statement. 6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as the Company is subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the Company covenants that it will file all reports required to be filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC thereunder, that if it ceases to be so required to file such reports, it will upon the request of any Holder or beneficial owner of Registrable Securities (i) make publicly available such information (including, without limitation, the information specified in Rule 144(c)(2) under the 1933 Act) as is necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to be delivered, promptly following a request by any Holder or beneficial owner of Registrable Securities or any prospective purchaser or transferee designated by such Holder or beneficial owner, such information (including, without limitation, the information specified in Rule 144A(d)(4) under the 1933 Act) as is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii) take such further action that is reasonable in the circumstances, in each case to the extent required from time to time to enable such Holder to sell its Registrable Securities without registration under the 1933 Act within the limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may be amended from time to time, or (z) any similar rules or regulations hereafter adopted by the SEC. Upon the request of any Holder or beneficial owner of Registrable Securities, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements. (b) No Inconsistent Agreements. The Company has not entered into nor will the Company on or after the date of this Agreement enter into any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof; provided that the Company will not be precluded from entering into any agreement after the date hereof which may or does result, directly or indirectly, in the payment of Additional Interest. The rights granted to the Holders hereunder do not and will not in any way conflict with and are not and will not be inconsistent with the rights granted to the holders of any of the Company's other issued and outstanding securities under any other agreements entered into by the Company or any of its subsidiaries. (c) Amendments and Waivers. The provisions of this Agreement, including the provisions 31 32 of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or departure; provided, however, that no amendment, modification, supplement or waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder. (d) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder or Participating Broker-Dealer (other than the Initial Purchasers), at the most current address set forth on the records of the registrar under the Indenture, (ii) if to the Initial Purchasers, at the most current address given by the Initial Purchasers to the Company by means of a notice given in accordance with the provisions of this Section 6(d), which address initially shall be the address set forth in the Purchase Agreement; (iii) if to the Company, initially at the address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(d) and (iv) if to any Underwriter, at the most current address given by such Underwriter to the Company by means of a notice given in accordance with the provisions of this Section 6(d), which address initially shall be the address set forth in the applicable underwriting agreement. All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the next business day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture. (e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms hereof or of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and such Person shall be entitled to receive the benefits hereof. (f) Third Party Beneficiary. Each Holder and Participating Broker-Dealer shall be a third party beneficiary of the agreements made hereunder between the Company, on the one hand, and 32 33 the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder. Each Holder, by its acquisition of Securities, shall be deemed to have agreed to the provisions of Section 5(b) hereof. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Restriction on Resales. If the Company or any of its subsidiaries or affiliates (as defined in Rule 144 under the 1933 Act) shall redeem, purchase or otherwise acquire any Registrable Security or any Exchange Security which is a "restricted security" within the meaning of Rule 144 under the 1933 Act, the Company will deliver or cause to be delivered such Registrable Security or Exchange Security, as the case may be, to the Trustee for cancellation and neither the Company nor any of its subsidiaries or affiliates will hold or resell such Registrable Security or Exchange Security or issue any new Security or Exchange Security to replace the same. (j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. (k) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. [SIGNATURE PAGE FOLLOWS] 33 34 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. PULTE HOMES, INC. By: -------------------------------- Name: Title: Confirmed and accepted as of the date first above written: SALOMON SMITH BARNEY INC. By: ------------------------- Authorized Signatory For itself and as Initial Purchaser Representative of the other Initial Purchasers named on Schedule A attached hereto. 35 Schedule A INITIAL PURCHASERS Salomon Smith Barney Inc. Banc of America Securities LLC Banc One Capital Markets, Inc. PNC Capital Markets, Inc. SunTrust Capital Markets, Inc. EX-5.1 12 k64962ex5-1.txt OPINION OF HONIGMAN MILLER SCHWARTZ & COHN 1 EXHIBIT 5.1 [LETTERHEAD OF HONIGMAN MILLER SCHWARTZ AND COHN] Pulte Homes, Inc. 33 Bloomfield Hills Parkway Suite 200 Bloomfield Hills, Michigan 48304 Re: Registration Statement on Form S-4 Ladies and Gentlemen: We have acted as counsel to Pulte Homes, Inc., a Michigan corporation (the "Company") and certain subsidiary guarantors (the "Guarantors"), in connection with the Registration Statement on Form S-4 (the "Registration Statement") relating to the issuance by the Company of $500,000,000 aggregate principal amount of the Company's 7 7/8% Senior Notes due 2011 (the "New Notes") and related guarantees (the "Guarantees") registered under the Securities Act of 1933, as amended (the "Securities Act"), in exchange for a like principal amount of the Company's outstanding unregistered 7 7/8% Senior Notes due 2011 (the "Original Notes"). The New Notes are issuable under an Indenture dated as of October 24, 1995, as supplemented (the "Indenture"), among the Company, as issuer, the Guarantors named therein and Bank One Trust Company, National Association (successor-in-interest to The First National Bank of Chicago), as trustee (the "Trustee"). We have examined such documents, and have considered such matters of law, as we have considered appropriate as a basis for our opinions set forth below. In rendering our opinions, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company and the Guarantors, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise) and executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and the Guarantors and of public officials. Based on the foregoing, we are of the opinion that the execution, delivery and performance of the New Notes and the Guarantees have been duly authorized by all necessary corporate action on the part of the Company and the Guarantors, as applicable, and, when the New Notes are executed by the Company and authenticated by the Trustee as specified in the Indenture and delivered against surrender and cancellation of a like principal amount of Original Notes in the manner described in the Registration Statement, the New Notes and the Guarantees will be legally issued and will constitute valid and binding obligations of the Company and the Guarantors, as applicable, enforceable against them in accordance with their terms. 2 The opinion set forth above are subject to the following qualifications and exceptions: (a) Our opinion stated above is subject to the effect of any applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws of general application affecting creditors' rights. (b) Our opinion stated above is subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing, and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered in a proceeding in equity or at law). (c) In rendering the opinion set forth above, we have assumed that, at the time of the authentication and delivery of the New Notes, any resolutions of the boards of directors or other appropriate governing bodies of the Company and the Guarantors that we relied upon in connection with issuing this opinion have been modified or rescinded, there will not have occurred any change in the law affecting the authorization, execution, delivery, validity or enforceability of the New Notes and the Guarantees, the Registration Statement will have been declared effective by the Securities and Exchange Commission and will continue to be effective, none of the particular terms of the New Notes or the Guarantees will violate any applicable law and neither the issuance and sale thereof, as applicable, nor the compliance by the Company or the Guarantors with the terms thereof will result in a violation of any agreement or instrument then binding upon the Company or the Guarantors or any order of any court or governmental body having jurisdiction over the Company or the Guarantors. Our opinion expressed above is limited to the law of the State of Michigan and the federal law of the United States. We hereby consent to your filing of this opinion as an exhibit to the Registration Statement, and to the reference to our firm under the caption "Legal Matters" contained in the Prospectus that is part of the Registration Statement. In giving such consents, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder. Dated: October 2, 2001 Very truly yours, /s/ Honigman Miller Schwartz and Cohn EX-12.1 13 k64962ex12-1.txt COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12.1 PULTE CORPORATION AND SUBSIDIARIES COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES The following table shows our ratios of earnings to fixed charges for the periods indicated. This information should be read in conjunction with the consolidated financial statements and the accompanying notes incorporated by reference in the prospectus.
Six Months Ended YEAR ENDED DECEMBER 31, June 30, --------------------------------- ------------------------- 1996 1997 1998 1999 2000 2000 2001 --------------------------------- ------------------------- (unaudited) (unaudited) ~~Ratio of earnings to fixed charges (a) 3.00 2.49 3.76 5.31 5.45 3.99 4.30 ----------------~~
(a) The ratios of earnings to fixed charges set forth above are computed on a total enterprise basis, except for our discontinued thrift operations, which are excluded. Fixed charges include interest incurred, a portion of rent expense representing the estimated interest factor and amortization of debt expense. EX-23.2 14 k64962ex23-2.txt CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement on Form S-4 and related Prospectus of Pulte Homes, Inc. for the registration of $500,000,000 in Senior Notes and to the incorporation by reference therein of our report dated January 22, 2001, with respect to the consolidated financial statements and schedule of Pulte Homes, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Detroit, Michigan September 28, 2001 EX-23.3 15 k64962ex23-3.txt CONSENT OF KPMG LLP 1 EXHIBIT 23.3 INDEPENDENT AUDITORS' CONSENT The Board of Directors Del Webb Corporation: We consent to the use of our report incorporated by reference in the Registration Statement Form S-4 filing of Pulte Homes, Inc., dated October 2, 2001, and the reference to our firm under the heading "Experts" in the Prospectus. /s/ KPMG LLP Phoenix, Arizona October 1, 2001 EX-25.1 16 k64962ex25-1.txt STATEMENT OF ELIGIBILITY OF TRUSTEE ON FORM T-1 1 EXHIBIT 25.1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 -------- STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ---------------------------- BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 31-0838515 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) BANK ONE TRUST COMPANY, N.A. ONE NORTH STATE STREET, 9TH FLOOR CHICAGO, ILLINOIS 60602 ATTN: SANDRA L. CARUBA, FIRST VICE PRESIDENT AND COUNSEL, (312) 336-9436 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) ----------------------------- PULTE HOMES, INC. (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) MICHIGAN 38-2766606 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 33 BLOOMFIELD HILLS PARKWAY SUITE 200 48304 BLOOMFIELD HILLS, MICHIGAN (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) DEBT SECURITIES (TITLE OF INDENTURE SECURITIES) 2 ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT. Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington D.C. (B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. No such affiliation exists with the trustee. ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificate of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 3 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois, on the 1st day of October, 2001. BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE BY /S/ SANDRA L. CARUBA ----------------------------------------- SANDRA L. CARUBA FIRST VICE PRESIDENT * Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One Trust Company, National Association, filed as Exhibit 25 to the Registration Statement on Form S-4 of U S WEST Communications, Inc., filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-32124). 4 EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT October 1, 2001 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen: In connection with the qualification of an indenture between Pulte Homes, Inc. and Bank One Trust Company, National Association, as Trustee, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION BY: /S/ SANDRA L. CARUBA ----------------------------------------- SANDRA L. CARUBA FIRST VICE PRESIDENT 5 BANK ONE TRUST COMPANY, N.A. FFIEC 041 Legal Title of Bank RC-1 COLUMBUS City 10 OH 43271 State Zip Code FDIC Certificate Number - 21377 CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 2001 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. SCHEDULE RC--BALANCE SHEET
Dollar Amounts in Thousands RCON Bil | Mil | Thou ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) ............................................ 0081 212,836 1.a b. Interest-bearing balances (2) ..................................................................... 0071 0 1.b 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) ........................................ 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D) ...................................... 1773 1,700 2.b 3. Federal funds sold and securities purchased under agreements to resell ............................ 1350 1,160,732 3 4. Loans and lease financing receivables (from Schedule RC-C): A. LOANS AND LEASES HELD FOR SALE .................................................................... 5369 0 4.a B. LOANS AND LEASES, NET OF UNEARNED INCOME .......................................................... B528 224,872 4.b c. LESS: Allowance for loan and lease losses ......................................................... 3123 253 4.c D. LOANS AND LEASES, NET OF UNEARNED INCOME AND ALLOWANCE (ITEM 4.B MINUS 4.C) ....................... B529 224,619 4.d 5. Trading assets (from Schedule RC-D) ............................................................... 3545 0 5 6. Premises and fixed assets (including capitalized leases) .......................................... 2145 19,688 6 7. Other real estate owned (from Schedule RC-M) ...................................................... 2150 0 7 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) .......... 2130 0 8 9. Customers' liability to this bank on acceptances outstanding ...................................... 2155 0 9 10. Intangible assets A. GOODWILL .......................................................................................... 3163 0 10.a B. OTHER INTANGIBLE ASSETS (FROM SCHEDULE RC-M) ...................................................... 0426 12,246 10.b 11. Other assets (from Schedule RC-F) ................................................................ 2160 235,123 11 12. Total assets (sum of items 1 through 11) ......................................................... 2170 1,866,944 12 (1) Includes cash items in process of collection and unposted debits (2) Includes time certificates of deposit not held for trading
6 BANK ONE TRUST COMPANY, N.A. FFIEC 041 Legal Title of Bank RC-2 FDIC Certificate Number - 21377 11 SCHEDULE RC - CONTINUED
Dollar Amounts in Thousands RCON Bil | Mil | Thou LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) ...................... 2200 1,674,033 13.a (1) Noninterest-bearing (1) ....................................................................... 6631 1,078,249 13.a.1 (2) Interest-bearing .............................................................................. 6636 595,784 13.a.2 b. Not applicable 14. Federal funds purchased and securities sold under agreements to repurchase .................... 2800 0 14 15. Trading liabilities (from Schedule RC-D) ...................................................... 3548 0 15 16. OTHER BORROWED MONEY (INCLUDES MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER CAPITALIZED LEASES) (FROM SCHEDULE RC-M): ......................................................... 3190 0 16 17. Not applicable 18. Bank's liability on acceptances executed and outstanding ...................................... 2920 0 18 19. Subordinated notes and debentures (2) ......................................................... 3200 0 19 20. Other liabilities (from Schedule RC-G) ........................................................ 2930 53,279 20 21. Total liabilities (sum of items 13 through 20) ................................................ 2948 1,727,312 21 22. MINORITY INTEREST IN CONSOLIDATED SUBSIDIARIES ................................................ 3000 0 22 EQUITY CAPITAL 23. Perpetual preferred stock and related surplus ................................................. 3838 0 23 24. Common stock .................................................................................. 3230 800 24 25. Surplus (exclude all surplus related to preferred stock) ...................................... 3839 45,157 25 26. a. Retained earnings .......................................................................... 3632 93,650 26.a B. ACCUMULATED OTHER COMPREHENSIVE INCOME (3) ..................................................... B530 25 26.b 27. OTHER EQUITY CAPITAL COMPONENTS (4) ........................................................... A130 0 27 28. Total equity capital (sum of items 23 through 27) ............................................. 3210 139,632 28 29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28) ........ 3300 1,866,944 29
Memorandum TO BE REPORTED WITH THE MARCH REPORT OF CONDITION. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external
RCON Number ~~auditors as of any date during 2000 ......................................................... 6724 N/A M. 1~~
1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank's parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = ATTESTATION ON BANK MANAGEMENT'S ASSERTION ON THE EFFECTIVENESS OF THE BANK'S INTERNAL CONTROL OVER FINANCIAL REPORTING BY A CERTIFIED PUBLIC ACCOUNTING FIRM 4 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 5 = Directors' examination of the bank performed by other external auditors (may be required by state chartering authority) 6 = Review of the bank's financial statements by external auditors 7 = Compilation of the bank's financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus. (3) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and minimum pension liability adjustments. (4) Includes treasury stock and unearned Employee Stock Ownership Plan shares. EX-99.1 17 k64962ex99-1.htm FORM OF LETTER OF TRANSMITTAL ex99-1






Michigan		38-2766606
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)






		Proposed	Proposed
		maximum	maximum
Title of each class	Amount to be	offering price	aggregate offering	Amount of
of securities to be registered	registered	per unit(1)	price(1)	registration fee


7 7/8% Senior Notes due 2011 Guarantees of the Senior Notes(2)	$500,000,000	100%	$500,000,000	$125,000


TABLE OF ADDITIONAL REGISTRANTS
PROSPECTUS SUMMARY
The Exchange Offer
RATIOS OF EARNINGS TO FIXED CHARGES
FORWARD-LOOKING STATEMENTS
USE OF PROCEEDS
THE EXCHANGE OFFER
DESCRIPTION OF THE NEW NOTES
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
PLAN OF DISTRIBUTION
LEGAL MATTERS
EXPERTS
WHERE YOU CAN FIND MORE INFORMATION
TABLE OF CONTENTS
INFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
Indenture Supplement dated August 6, 2001
Indenture Supplement dated August 6, 2001
Indenture Supplement dated July 31, 2001
Credit Agreement dated as of August 31, 2000
1st Amendment to Credit Agreement dated 2/16/2001
2nd Amendment to Credit Agreement dated 07/30/2001
Intercreditor and Subordination Agreement
Letter of Representations
Registration Rights Agreement dated 8/6/2001
Opinion of Honigman Miller Schwartz & Cohn
Computation of Ratio of Earnings to Fixed Charges
Consent of Ernst & Young LLP
Consent of KPMG LLP
Statement of Eligibility of trustee on Form T-1
Form of Letter of Transmittal
Form of Notice of Guaranteed Delivery
Form of Letter to Clients
Form of Letter to Registered Holder
Form of Letter to Nominees
Form of Exchange Agent Agreement


Exact Names			I.R.S.
of Subsidiary Guarantor			Employer
Registrants as Specified	State of		Identification
in their Respective Charters	Organization		Number

Pulte Communities NJ, Limited Partnership		Michigan		38-3567884




Pulte Development Corporation		Michigan		38-2774526




Pulte Home Corporation		Michigan		38-1545089




Pulte Home Corporation of New England		Michigan		04-3228754




Pulte Home Corporation of the Delaware Valley		Michigan		52-1872230




Pulte Homes of Greater Kansas City, Inc.		Michigan		75-2522882




Pulte Homes of Michigan Corporation		Michigan		38-1877637




Pulte Homes of Michigan I LP		Michigan		38-3575570




Pulte Homes of Minnesota Corporation		Minnesota		31-1288425




Pulte Homes of NJ, Limited Partnership		Michigan		38-3566768




Pulte Homes of New York, Inc.		Michigan		38-3576363




Pulte Homes of Ohio Corporation		Ohio		38-3027572




Pulte Homes of PA, Limited Partnership		Michigan		38-3566766




Pulte Homes of South Carolina, Inc.		Michigan		38-3249317




Pulte Homes of Texas, L.P.		Texas		75-2720127




Pulte Homes Tennessee Limited Partnership		Nevada		38-3412151




Pulte Land Company, LLC		Michigan		38-3500432




Pulte Land Development Corporation		Michigan		38-3306253




Pulte Lifestyle Communities, Inc.		Michigan		38-3214013




Pulte Michigan Holdings Corporation		Michigan		38-3575564




Pulte Michigan Services, LLC		Michigan		38-3498515




Pulte Payroll Corporation		Michigan		31-1354336




Pulte-IN Corp.		Michigan		38-3328533




Radnor Homes, Inc.		Michigan		38-3412149




Riverwalk of the Palm Beaches Development Company, Inc.		Florida		65-0496407




RN Acquisition 2 Corp.		Nevada		38-3412154




Sean/ Christopher Homes, Inc.		Michigan		35-1905547




Spruce Creek South Utilities, Inc.		Florida		59-2995013




Terravita Corp.		Arizona		86-0739200




Terravita Home Construction Co.		Arizona		86-0194910




Village Walk Development Company, Inc.		Florida		65-0472159




Wilben, LLLP		Maryland		52-1619362




Wil Corporation		Michigan		38-3218819


Exchange Offer		We are offering to exchange $500 million in aggregate principal amount of our 7 7/8% Senior Notes due 2011 that have been registered under the Securities Act of 1933 for a like principal amount of our outstanding unregistered 7 7/8% Senior Notes due 2011.

		For procedures for tendering, see “THE EXCHANGE OFFER — Procedures for Tendering Original Notes.”

Resale without further registration		We believe that you may resell or otherwise transfer the new notes received in the exchange offer without complying with the registration and prospectus delivery provisions of the Securities Act so long as you are not a broker-dealer and you meet the following conditions:

		• you are not our “affiliate” within the meaning of Rule 405 under the Securities Act;

		• you acquire the new notes issued in the exchange offer in the ordinary course of your business; and

		• you have no arrangements or understanding with any person to participate in the distribution of the new notes.

		By signing the letter of transmittal and tendering your original notes, you will be making representations to this effect. You may incur liability under the Securities Act if:

		• any of the representations listed above are not true; and

		• you transfer any new note issued to you in the exchange offer without delivering a prospectus meeting the requirements of the Securities Act or an exemption from the registration requirements under the Securities Act.

		We do not assume or indemnify you against liability under these circumstances, which means that we will not protect you against any loss incurred as a result of this liability under the Securities Act.

Restrictions on resale by broker-dealers		Each broker-dealer that has received new notes for its own account in exchange for original notes that were acquired as a result of market-making or other trading activities must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in


(1)	Estimated solely for purposes of determining the registration fee pursuant to Rule 457(f).
(2)	No separate consideration will be received for the issuance of the Guarantees, and, pursuant to Rule 457(n), there is no separate registration fee for the Guarantees.


Issuer		Pulte Homes, Inc.

Securities offered		$500 million in principal amount of 7 7/8% Senior Notes due 2011.

		The form and terms of the new notes will be the same as the form and terms of the original notes, except that:

		• the new notes will have been registered under the Securities Act;

		• the new notes will not contain terms providing for payments of additional interest under circumstances relating to the timing of the exchange offer.

		• the new notes will be represented by one or more global notes in book-entry form; and

		• the new notes will be issuable in denominations of $1,000 and integral multiples thereof.

Single class		The original notes and the new notes will vote together as a single class for purposes of taking actions and exercising rights under the indenture.

Interest		Interest will accrue on the new notes from the date of delivery at a rate of 7 7/8% and will be payable semiannually in arrears on August 1 and February 1 of each year, commencing on February 1, 2002.

Maturity Date		August 1, 2011.

Ranking		The new notes will rank equally with all of our unsecured and unsubordinated indebtedness.

Guarantees		Payment of principal of and interest on the new notes will be guaranteed, jointly and severally, by our wholly-owned homebuilding subsidiaries in the United States, including Pulte Home Corporation and Del Webb Corporation and its wholly-owned homebuilding


Repurchase at Option of Holder		Upon a Change of Control Triggering Event, each holder of new notes will have the right, at the holder’s option, subject to the terms and conditions of the indenture governing the new notes, to require us to purchase all or any part of such holder’s new notes at a cash price equal to 100% of their face amount, plus accrued interest to the date of repurchase. See “Description of the New Notes — Repurchase of the New Notes at the Option of the Holder.”

Optional Redemption		We may redeem any or all of the new notes at any time at a redemption price equal to the greater of (1) 100% of the principal amount of the new notes being redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the new notes being redeemed, discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 40 basis points, plus, in each case, accrued and unpaid interest on the notes to the redemption date.

Sinking Fund		None.

Denominations		$1,000 and integral multiples thereof.

Form		The new notes will be issued in book-entry form and will be represented by one or more global notes in fully registered form. Beneficial interests in global notes will be shown on, and transfers thereof will be effected only through, records maintained by The Depository Trust Company and its participants. Any such beneficial interests may not be exchanged for new notes in certificated form, except in the limited circumstances described in this prospectus.

Settlement		Same-day — immediately available funds.

Use of Proceeds		We will not receive any cash proceeds from the issuance of the new notes.

Absence of Market for the New Notes		The new notes are a new issue of securities with no established trading market. We currently have no intention to apply to list the new notes on any securities exchange or quotation system. Accordingly, there can be no assurance as to the development or liquidity of any market for the new notes.


No Limit on Debt		The indenture governing the new notes does not limit the amount of debt that we may issue or provide holders any protection should we be involved in a highly leveraged transaction.


Certain Covenants		The indenture governing the new notes contains covenants that, among other things, will limit our ability and the ability of some of our subsidiaries to:

		• issue, assume or guarantee certain additional secured indebtedness; and

		• engage in sale and lease-back transactions.

		These covenants are subject to important exceptions and qualifications, which are described under the heading “Description of the New Notes” in this offering memorandum.

Events of Default		Each of the following is an event of default under the indenture governing the new notes:

		• our failure to pay principal of or premium, if any, on the new notes when due;

		• our failure for 30 days to pay interest when due on the new notes;

		• the occurrence of a default in respect of our debt or the debt of our subsidiaries (except certain non-recourse land financing) totalling $10 million or more in aggregate principal amount, resulting in the acceleration of such debt or due to the failure to pay such debt at maturity;

		• any guarantee in respect of the new notes by certain of our guarantors ceases to be in full force and effect and enforceable in accordance with its terms;

		• our failure to perform other covenants with respect to the new notes for 60 days after receipt of notice of failure; and

		• certain events of bankruptcy, solvency or reorganization.

		If any event of default occurs and is continuing, the trustee under the indenture or holders of at least 25% in aggregate principal amount of outstanding debt securities issued under the indenture may declare the principal thereof immediately due and payable.

Other		The new notes and the original notes will constitute a single series of debt securities under the indenture and will therefore vote together as a single class for purposes of determining whether the holders of the requisite percentage in outstanding principal amount have taken certain actions or exercised certain rights under the indenture.


	•	under any effective registration statement under the Securities Act;


	Page

Prospectus Summary		1




Our Business		5




Ratios of Earnings to Fixed Charges		6




Forward-Looking Statements		6




Use of Proceeds		7




The Exchange Offer		7




Description of the New Notes		14




United States Federal Income Tax Considerations		29




Plan of Distribution		30




Legal Matters		31




Experts		32




Where You Can Find More Information		32


	3.1			— Articles of Incorporation, as amended, of Pulte Homes, Inc. (Incorporated by reference to Exhibit 19(a) to Pulte Corporation’s Form 10-Q for the quarter ended June 30, 1988).
	3.2			— By-laws of Pulte Homes, Inc. (Incorporated by reference to Exhibit 3(b) to Pulte Corporation’s Registration Statement on Form S-4, Registration No. 33-17223).
	4.1			— Senior Note Indenture dated as of October 24, 1995 among Pulte Corporation, Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Corporation, relating to Pulte Corporation’s 7.3% unsecured Senior Notes due 2005 ($125,000,000 original aggregate principal amount) and 7.625% unsecured Senior Notes due 2017 ($150,000,000 original aggregate principal amount). (Incorporated by reference to Exhibit (c)1 to Pulte Corporation’s Current Report on Form 8-K dated October 20, 1995).
	4.2			— Indenture Supplement dated as of August 27, 1997 among Pulte Corporation, Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.2 to Pulte Corporation’s Current Report on Form 8-K dated October 6, 1997).


	4.3			— Indenture Supplement dated as of March 20, 1998 among Pulte Corporation, Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.2 to Pulte Corporation’s Current Report on Form 8-K dated March 24, 1998).
	4.4			— Indenture Supplement dated January 31, 1999 among Pulte Corporation, Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.2 to Pulte Corporation’s Current Report on Form 8-K dated March 3, 1999).
	4.5			— Indenture Supplement dated April 3, 2000 among Pulte Corporation, Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.5 to Pulte Corporation Registration Statement on Form S-4, Registration No. 333-36814).
	4.6			— Indenture Supplement dated February 21, 2001 among Pulte Corporation, Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.2 to Pulte Corporation’s Current Report on Form 8-K dated February 23, 2001).
	4.7*			— Indenture Supplement dated July 31, 2001 among Pulte Homes, Inc., Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Homes, Inc.
	4.8*			— Indenture Supplement dated August 6, 2001 among Pulte Homes, Inc., Bank One Trust Company, National Association (as successor Trustee to The First National Bank of Chicago), and certain subsidiaries of Pulte Homes, Inc.
	4.9			— Senior Note Indenture dated as of December 1, 1993 among Pulte Corporation, The Bank of New York (as successor Trustee to NationsBank of Georgia, National Association), Pulte Home Corporation and certain subsidiaries of Pulte Corporation, relating to Pulte Corporation’s 8.375% unsecured Senior Notes due 2004 ($115,000,000 original aggregate principal amount) and 7% unsecured Senior Notes due 2003 ($100,000,000 original aggregate principal amount). (Incorporated by reference to Exhibit 4.1 to Pulte Corporation’s Registration Statement on Form S-3, Registration No. 33-71742).
	4.10			— Indenture Supplement dated August 27, 1997 among Pulte Corporation, The Bank of New York (as successor Trustee to NationsBank of Georgia, National Association), Pulte Home Corporation and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.1 to Pulte Corporation’s Current Report on Form 8-K dated October 6, 1997).
	4.11			— Indenture Supplement dated March 20, 1998 among Pulte Corporation, The Bank of New York (as successor Trustee to NationsBank of Georgia, National Association), Pulte Home Corporation and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.1 to Pulte Corporation’s Current Report on Form 8-K dated March 24, 1998).
	4.12			— Indenture Supplement dated January 31, 1999 among Pulte Corporation, The Bank of New York (as successor Trustee to NationsBank of Georgia, National Association), Pulte Home Corporation and certain subsidiaries of Pulte Corporation. (Incorporated by reference to Exhibit 4.1 to Pulte Corporation’s Current Report on Form 8-K dated March 3, 1999).


	4.13*			— Indenture Supplement dated July 31, 2001 among Pulte Homes, Inc., The Bank of New York and certain subsidiaries of Pulte Homes, Inc.
	4.14			— Senior Note Indenture dated as of February 18, 1999 among Del Webb Corporation and Bank of Montreal Trust Company, relating to Del Webb Corporation’s 10 1/4% Senior Subordinated Debentures due 2010 ($200,000,000 original aggregate principal amount). (Incorporated by reference to Exhibit 1.2 to Del Webb Corporation’s current report on Form 8-K dated February 18, 1999).
	4.15			— Senior Note Indenture dated as of May 11, 1998 among Del Webb Corporation and State Street Bank and Trust Company, relating to Del Webb Corporation’s 9 3/8% Senior Subordinated Debentures due 2009 ($200,000,000 original aggregate principal amount). (Incorporated by reference to Exhibit 1.1 to Del Webb Corporation’s current report on Form 8-K dated May 11, 1998).
	4.16			— Senior Note Indenture dated as of January 21, 1997 among Del Webb Corporation and State Street Bank and Trust Company, relating to Del Webb Corporation’s 9 3/4% Senior Subordinated Debentures due 2008 ($150,000,000 original aggregate principal amount). (Incorporated by reference to Exhibit 1.1 to Del Webb Corporation’s current report on Form 8-K dated January 22, 1997).
	4.17			— Senior Note Indenture dated as of February 11, 1994 among Del Webb Corporation and The Bank of New York, relating to Del Webb Corporation’s 9% Senior Subordinated Debentures due 2006 ($100,000,000 original aggregate principal amount). (Incorporated by reference to Exhibit 4.1 to Del Webb Corporation’s current report on Form 8-K dated February 11, 1994).
	4.18*			— Credit Agreement dated as of August 31, 2000, among Pulte Homes, Inc., and each of the Material Subsidiaries of Pulte, and Bank of America, N.A., as Administrative Agent, Bank One, N.A., as Syndication Agent, and Comerica Bank, as Co-Agent.
	4.19*			— First Amendment dated February 16, 2001 to Credit Agreement as of August 31, 2000, among Pulte Homes, Inc., and each of the Material Subsidiaries of Pulte, and Bank of America, N.A., as Administrative Agent, Bank One, NA, as Syndication Agent, and Comerica Bank, as Co-Agent.
	4.20*			— Second Amendment dated July 30, 2001 to Credit Agreement dated as of August 31, 2000, among Pulte Homes, Inc., and each of the Material Subsidiaries of Pulte, and Bank of America, N.A., as Administrative Agent, Bank One, NA, as Syndication Agent, and Comerica Bank, as Co-Agent.
	4.21*			— Intercreditor and Subordination Agreement dated as of July 31, 2001, among Asset Seven Corp., each subsidiary of Pulte Homes, Inc. that from time to time executes an Intercreditor Joinder Agreement, Bank of America, N.A., as administrative agent for the Five Year Lenders, Citicorp Real Estate, Inc., as administrative agent for the Bridge Lenders, and Bank One Trust Company, National Association, as trustee for the Noteholders.
	4.22			— Letter of Representations dated October 2, 2001 between Pulte Homes, Inc., Bank One Trust Company, National Association, as trustee, and The Depository Trust Company relating to Pulte Homes, Inc.’s 7 7/8% Senior Notes due 2011 ($500,000,000 original aggregate principal amount).
	4.23*			— Registration Rights Agreement dated August 6, 2001 among Pulte Homes, Inc. and Salomon Smith Barney Inc., as the Initial Purchaser Representative.
	5.1*			— Opinion of Honigman Miller Schwartz and Cohn.
	12.1*			— Computation of Ratio of Earnings to Fixed Charges.


	23.1*			— Consent of Honigman Miller Schwartz and Cohn (included in Exhibit 5.1 hereto).
	23.2*			— Consent of Ernst & Young LLP.
	23.3*			— Consent of KPMG LLP.
	24.1*			— Power of Attorney (included in Pulte Homes, Inc. signature page hereto).
	25.1*			— Statement of Eligibility of trustee on Form T-1 of Bank One Trust Company, National Association.
	99.1*			— Form of Letter of Transmittal.
	99.2*			— Form of Notice of Guaranteed Delivery.
	99.3*			— Form of Letter to Clients.
	99.4*			— Form of Letter to Registered Holder and/or DTC Participant.
	99.5*			— Form of Letter to Nominees.
	99.6*			— Form of Exchange Agent Agreement.


Signature		Title

/s/ WILLIAM J. PULTE William J. Pulte		Chairman of the Executive Committee of the Board of Directors

/s/ ROBERT K. BURGESS Robert K. Burgess		Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer)

/s/ ROGER A. CREGG Roger A. Cregg		Senior Vice President and Chief Financial Officer (Principal Financial Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President and Controller (Principal Accounting Officer)
/s/ D. KENT ANDERSON D. Kent Anderson		Director
/s/ DEBRA J. KELLY-ENNIS Debra J. Kelly-Ennis		Director


Signature		Title

/s/ DAVID N. MCCAMMON David N. McCammon		Director
/s/ PATRICK J. O’MEARA Patrick J. O’Meara		Director
/s/ MICHAEL W. ROSSI Michael W. Rossi		Director
/s/ GLENN W. SCHAEFFER Glenn W. Schaeffer		Director
/s/ ALAN E. SCHWARTZ Alan E. Schwartz		Director
/s/ FRANCIS J. SEHN Francis J. Sehn		Director
/s/ JOHN J. SHEA John J. Shea		Director
/s/ WILLIAM B. SMITH William B. Smith		Director


Signature		Title

/s/ WILLIAM E. SHANNON William E. Shannon		President and Director (Principal Executive Officer)

/s/ HARMON D. SMITH Harmon D. Smith		Vice President, Chief Financial Officer and Director (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President and Secretary
/s/ CHARLES R. HATHAWAY Charles R. Hathaway		Director


Signature		Title

/s/ MARK J. O’BRIEN Mark J. O’Brien		President (Principal Executive Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President and Controller (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President, Treasurer and Assistant Secretary (Principal Financial Officer)

/s/ JOHN R. STOLLER John R. Stoller		Senior Vice President, General Counsel, Secretary, and Manager
/s/ GREGORY M. NELSON Gregory M. Nelson		Vice President, Assistant Secretary and Manager


Signature		Title

/s/ ROBERT J. HALSO Robert J. Halso		President (Principal Executive Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President, Controller and Director (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President, Treasurer and Assistant Secretary (Principal Financial Officer)
/s/ ROBERT P. SCHAFER Robert P. Schafer		Vice President of Finance
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director
/s/ MARK J. O’BRIEN Mark J. O’Brien		Director


Signature		Title

/s/ CHARLES H. HATHAWAY Charles H. Hathaway		President (Principal Executive Officer)

/s/ HARMON D. SMITH Harmon D. Smith		Vice President and Chief Financial Officer (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President and Secretary
/s/ ROGER A. CREGG Roger A. Cregg		Director
/s/ ROBERT J. HALSO Robert J. Halso		Director
/s/ MARK J. O’BRIEN Mark J. O’Brien		Director


Signature		Title

/s/ CURTIS K. RING Curtis K. Ring		President (Principal Executive Officer)

/s/ HARMON D. SMITH Harmon D. Smith		Vice President, Chief Financial Officer and Director (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President and Secretary
/s/ CHARLES H. HATHAWAY Charles H. Hathaway		Director
/s/ WILLIAM E. SHANNON William E. Shannon		Director


Signature		Title

/s/ GLEN T. TROTTA Glen T. Trotta		President and Director (Principal Executive Officer)

/s/ HARMON D. SMITH Harmon D. Smith		Vice President, Chief Financial Officer and Director (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President and Secretary
/s/ CHARLES H. HATHAWAY Charles H. Hathaway		Vice President and Director


Signature		Title

/s/ WILLIAM J. PULTE* William J. Pulte		Chairman of the Executive Committee of the Board of Directors

/s/ ROBERT K. BURGESS* Robert K. Burgess		Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer)

/s/ ROGER A. CREGG* Roger A. Cregg		Senior Vice President and Chief Financial Officer (Principal Financial Officer)

/s/ VINCENT J. FREES* Vincent J. Frees		Vice President and Controller (Principal Accounting Officer)
/s/ D. KENT ANDERSON* D. Kent Anderson		Director
/s/ DEBRA J. KELLY-ENNIS* Debra J. Kelly-Ennis		Director
/s/ DAVID N. MCCAMMON* David N. McCammon		Director
/s/ PATRICK J. O’MEARA* Patrick J. O’Meara		Director
/s/ MICHAEL W. ROSSI* Michael W. Rossi		Director
/s/ GLENN W. SCHAEFFER* Glenn W. Schaeffer		Director


Signature		Title

/s/ ALAN E. SCHWARTZ* Alan E. Schwartz		Director
/s/ FRANCIS J. SEHN* Francis J. Sehn		Director
/s/ JOHN J. SHEA* John J. Shea		Director
/s/ WILLIAM B. SMITH* William B. Smith		Director
By: /s/ JOHN R. STOLLER John R. Stoller, Attorney in Fact


Signature		Title

/s/ JEFFREY A. CROFT Jeffrey A. Croft		President and Director (Principal Executive Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President, Chief Financial Officer and Controller (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director


Signature		Title

/s/ JOHN S. GALLAGHER John S. Gallagher		President (Principal Executive Officer)

/s/ CURTIS VAN HYFTE Curtis Van Hyfte		Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer)


Signature		Title

/s/ STEVEN C. PETRUSKA Steven C. Petruska		President and Director (Principal Executive Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President and Assistant Secretary (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ ROBERT K. BURGESS Robert K. Burgess		Director
/s/ ROGER A. CREGG Roger A. Cregg		Director
/s/ DONALD J. DYKSTRA Donald J. Dykstra		Director
/s/ GREGORY M. NELSON Gregory M. Nelson		Director


Signature		Title

/s/ JAMES R. MCCABE James R. McCabe		President and Director (Principal Executive Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President, Chief Financial Officer and Controller (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director


Signature		Title

/s/ WILLIAM E. REISER, JR. William E. Reiser, Jr.		President (Principal Executive Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President of Finance (Principal Financial Officer)
/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President, Treasurer and Assistant Secretary
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director

/s/ JAMES RORISON James Rorison		Controller and Assistant Secretary (Principal Accounting Officer)
/s/ JEFFREY A. CROFT Jeffrey A. Croft		Director


Signature		Title

/s/ TAMARA S. GROSS Tamara S. Gross		President and Director (Principal Executive Officer)

/s/ PETER KEANE Peter Keane		Vice President of Finance, Treasurer and Controller (Principal Financial and Accounting Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director
/s/ ROBERT J. HALSO Robert J. Halso		Director


Signature		Title

/s/ JEFFERY K. PARSIGIAN Jeffery K. Parsigian		President and Director (Principal Executive Officer)

/s/ PETER KEANE Peter Keane		Vice President of Finance and Treasurer (Principal Financial and Accounting Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director
/s/ ROBERT J. HALSO Robert J. Halso		Director
/s/ ROBERT P. SCHAFER Robert P. Schafer		Director


Signature		Title

/s/ THOMAS J. STANDKE Thomas J. Standke		President, Chief Executive Officer and Director (Principal Executive Officer)

/s/ VINCENT J. FREES Vincent J. Frees		Vice President, Chief Financial Officer and Director (Principal Financial Officer)
/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President, Treasurer and Assistant Secretary
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director

/s/ JEFFERY PARKS Jeffery Parks		Controller (Principal Accounting Officer)


Signature		Title

/s/ WILLIAM E. WEBER William E. Weber		President and Director (Principal Executive Officer)

/s/ JAMES RORISON James Rorison		Controller (Principal Accounting Officer)

/s/ BRUCE E. ROBINSON Bruce E. Robinson		Vice President and Treasurer (Principal Financial Officer)
/s/ JOHN R. STOLLER John R. Stoller		Vice President, Secretary and Director