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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
October 9, 1997
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Date of Report (Date of earliest event reported)
PULTE CORPORATION
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(Exact name of registrant as specified in its charter)
Michigan 1-9804 38-2766606
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
33 Bloomfield Hills Pkwy., Suite 200, Bloomfield Hills, Michigan 48304
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (248) 647-2750
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Not Applicable
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(Former name or former address, if changed since last report)
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FORM 8-K
Item 5. Other Events.
On October 9, 1997, Pulte Corporation (the "Company") began circulating
a prospectus supplement (to prospectus dated September 29, 1995) concerning
$150,000,000 aggregate principal amount of 7 5/8% senior notes of the Company
due October 15, 2017.
In connection therewith, the Company entered into the following
agreements:
1. Purchase agreement, dated October 9, 1997.
2. Pricing agreement, dated October 9, 1997.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1.1 Purchase agreement dated October 9, 1997.
1.2 Pricing agreement dated October 9, 1997.
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this Report to be signed on its behalf
by the undersigned hereunto duly authorized.
PULTE CORPORATION
By: /s/ Vincent J. Frees
--------------------------
Vincent J. Frees
Vice President
Dated: October 9, 1997
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EXHIBIT 1.1
PULTE CORPORATION
(a Michigan corporation)
ISSUER
BUILDERS' SUPPLY & LUMBER CO., INC.
CAMBRIDGE SOFTWARE, INC.
CANTERBURY COMMUNITIES, INC.
CANTERBURY DIVERSIFIED BUILDING CORPORATION
CEIBA HOMES INC.
CHARLOTTE CLASSIC HOMES, INC.
DEAN REALTY COMPANY
GREENSBORO CLASSIC HOMES, INC.
GULF PARTNERS, INC.
GURABO HOMES INC.
JAMES T. LYNCH, INC.
OAKTON BUILDING CORPORATION
PALMVILLE DEVELOPMENT CORP.
PBW CORPORATION
PHC TITLE CORPORATION
PHM REALTY, INC.
PHT TITLE CORPORATION
PRESERVE I, INC.
PRESERVE II, INC.
PULTE DEVELOPMENT CORPORATION
PULTE HOME CARIBBEAN CORPORATION
PULTE HOME CORPORATION
PULTE HOME CORPORATION OF THE DELAWARE VALLEY
PULTE HOME CORPORATION OF MASSACHUSETTS
PULTE HOMES OF TEXAS, L.P.
PULTE HOMES OF GREATER KANSAS CITY, INC.
PULTE HOMES OF MICHIGAN CORPORATION
PULTE HOMES OF MINNESOTA CORPORATION
PULTE HOMES OF OHIO CORPORATION
PULTE HOMES OF SOUTH CAROLINA, INC.
PULTE LAND DEVELOPMENT CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE PAYROLL CORPORATION
PULTE REAL ESTATE COMPANY
RALEIGH CLASSIC HOMES, INC.
SALINAS BUILDERS, INC.
SALINAS HOMES, INC.
SEAN/CHRISTOPHER HOMES, INC.
SPRINGFIELD GOLF CLUB, INC.
WIL CORPORATION
SUBSIDIARY GUARANTORS
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PURCHASE AGREEMENT
(Senior Debt Securities)
October 9, 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Lehman Brothers Inc.
SBC Warburg Dillon Read Inc.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Pulte Corporation, a Michigan corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Lehman Brothers Inc. and SBC Warburg Dillon
Read Inc.(collectively, the "Underwriters"), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of $150,000,000 aggregate principal amount of the Company's 7 5/8% Senior Notes
due October 15, 2017 (the "Offered Securities"). The Offered Securities and
the Subsidiary Guarantees (as hereinafter defined) are to be issued pursuant to
an indenture dated October 24, 1995, as supplemented by the first supplemental
indenture thereto dated August 27, 1997 (as so supplemented, the "Indenture")
between the Company as issuer and the Company's subsidiaries listed on the
title page of this Agreement as guarantors (collectively, the "Subsidiary
Guarantors") and The First National Bank of Chicago, a National Banking
Association, as trustee (the "Trustee"), relating to certain of the Company's
debt securities, including the Offered Securities (the "Debt Securities").
Payment of the Offered Securities will be fully and unconditionally guaranteed
(the "Guarantees") by the Subsidiary Guarantors jointly and severally on a
senior basis, subject to each such Guarantee not constituting or resulting in a
violation of any applicable fraudulent conveyance or similar law of any
relevant jurisdiction, in which case, the liability of such Subsidiary
Guarantor under such Guarantee shall be reduced to the maximum amount
permissible under applicable fraudulent conveyance or similar law. The
Guarantees will be endorsed on each of the Offered Securities. The Offered
Securities, the Guarantees and
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the Indenture are more fully described in the Prospectus referred to below.
Prior to the purchase and public offering of the Offered Securities by the
several Underwriters, the Company, the Subsidiary Guarantors and the
Underwriters shall enter into an agreement substantially in the form of Exhibit
A hereto (the "Pricing Agreement"). The Pricing Agreement may take the form of
an exchange of any standard form of written telecommunication between the
Company and the Underwriters and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the Offered Securities will
be governed by this Agreement, as supplemented by the Pricing Agreement. From
and after the date of the execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to incorporate the Pricing Agreement.
The Company and the Subsidiary Guarantors have prepared and filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 33-93870) for the registration of the Offered Securities, the
Guarantees and an indeterminate number of shares of the Common Stock which may
be issuable on conversion of the Debt Securities under the Securities Act of
1933, as amended (the "1933 Act"), including (i) a basic preliminary prospectus
relating to the Debt Securities, the Guarantees and the Common Stock which may
be issuable upon conversion of Debt Securities which may be offered from time
to time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and (ii) a
preliminary prospectus supplement relating to the Offered Securities and the
Guarantees, and has filed such amendments thereto, if any, and such amended
preliminary prospectuses and preliminary prospectus supplements, if any, as may
have been required to the date hereof, and will file such additional amendments
thereto and such amended preliminary prospectuses and preliminary prospectus
supplements as may hereafter be required. Such registration statement has
become effective under the 1933 Act and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). The Company has
filed, or will file prior to 9:00 a.m. eastern time on the first business day
following the date of this Agreement, a registration statement (File No.
333-37525) with the Commission pursuant to Rule 462(b) under the 1933 Act. Such
registration statement has become effective, or will become effective upon
filing with the Commission, under the 1933 Act. Such registration statements,
as amended at the time they became effective (including all documents filed
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), that are incorporated by reference therein, and all
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations) are hereinafter referred to
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as the "Registration Statement." As provided in Section 3(a), a final
prospectus supplement reflecting the terms of the Offered Securities, the terms
of the offering thereof and the other matters set forth therein will be
prepared and filed pursuant to Rule 424 of the 1933 Act regulations. Such
final prospectus supplement, in the form first filed with the Commission after
the date hereof pursuant to Rule 424, is hereinafter referred to as the
"Prospectus Supplement." The basic prospectus included in the Registration
Statement relating to the Debt Securities, as supplemented by the Prospectus
Supplement, is herein called the "Prospectus," except that, if any revised
prospectus shall be provided to the Underwriters for use in connection with the
offering of the Offered Securities which differs from the basic prospectus on
file with the Commission at the time the Registration Statement was declared
effective (as supplemented by the Prospectus Supplement), the term "Prospectus"
shall refer to such prospectus (in each case including all documents filed by
the Company with the Commission pursuant to the 1934 Act that are incorporated
by reference therein and all information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations). All references in this
Agreement to financial statements and schedules and other information which are
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to include
all such financial statements and other information which are incorporated by
reference in, or deemed to be a part of, the Registration Statement or the
Prospectus.
The Company and the Subsidiary Guarantors understand that the Underwriters
propose to make a public offering of the Offered Securities as soon as they
deem advisable after the Pricing Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) The Company and each of the Subsidiary Guarantors, jointly and
severally, represents and warrants to each Underwriter as of the date
hereof, as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") and as of the
Closing Time referred to in Section 2 hereof as follows:
(i) The Company and each Subsidiary Guarantor meet the
requirements for use of Form S-3 under the 1933 Act. At the time
the Registration Statement became effective, the Registration
Statement complied, and at the Representation Date, the
Registration Statement will comply, in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations, the
1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act
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Rules"). The Registration Statement did not, at the time it
became effective, and at each time thereafte at which any
amendment to the Registration Statement becomes effective and as of
the Representation Date, will not, 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. The Prospectus, as of the date hereof does not, and at
the Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the Offered
Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes
effective, in which case at the time it is first provided to the
Underwriters for such use) and at the Closing Time, will 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
the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Merrill Lynch
expressly for use in the Registration Statement or Prospectus. No
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, including all documents referred to
under the caption "Incorporation of Certain Documents by Reference"
and all information, if any, deemed to be a part thereof pursuant
to Rule 430A(b) of the 1933 Act Regulations, at the time they were
or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934
Act (the "1934 Act Regulations"), and, when read together with the
other information in the Prospectus, at the time the Registration
Statement and any amendments thereto become effective and at the
Closing Time, will not 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, in the light of the
circumstances under which they were made, not misleading.
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(iii) Ernst & Young LLP, the accountants who certified the
consolidated financial statements of the Company, which include
the Subsidiary Guarantors, and supporting schedule included in
and/or incorporated by reference in the Registration Statement, are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) The consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of
the Company and its subsidiaries as at the dates indicated, and the
consolidated results of the operations of the Company and its
subsidiaries, and the consolidated cash flows of the Company and
its subsidiaries, respectively, for the periods specified. Said
consolidated financial statements have been prepared in conformity
with the 1933 Act and the 1933 Act Regulations and generally
accepted accounting principles applied on a consistent basis
throughout the periods involved. The supporting schedule included
or incorporated by reference in the Registration Statement presents
fairly the information required to be stated therein. The ratios
of earnings to fixed charges for the Company included in the
Prospectus under the captions "Historical Selected Consolidated
Financial Information" and "Summary Selected Consolidated Financial
Information" and in Exhibit 12 to the Registration Statement have
been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission. The selected financial data included or
incorporated by reference in the Prospectus present fairly in all
material respects the information shown therein and have been
compiled on a basis consistent with that of the audited
consolidated financial statements included or incorporated by
reference in the Registration Statement.
(v) The Prospectus contains certain financial information
relating to the Subsidiary Guarantors in Notes [3] and [7] of the
Notes to the unaudited condensed Consolidated Financial Statements
of Pulte Corporation (formerly PHM Corporation) (as derived from
the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997 and the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997 which are incorporated by reference
into and included in the Prospectus) and Notes [1] and [12] of the
Notes to the Consolidated Financial Statements of the Company (as
derived from the Company's Annual
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Report on Form 10-K for the year ended December 31, 1996 which
is incorporated by reference into and included in the Prospectus)
(the "Subsidiary Guarantor Segment Financial Information"). The
Subsidiary Guarantor Segment Financial Information (A) is based
upon the books and records of the Subsidiary Guarantors, (B) is a
fair and accurate presentation in all material respects of the
Subsidiary Guarantors' financial condition and operations and does
not contain an untrue statement of a material fact or omit to state
a material fact where omission would make the information therein
misleading in any material respect, (C) has been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved, except for the
inclusion therein of ICM Mortgage Corporation as an investment on
the equity method of accounting as stated therein, and (D) has been
included in the Prospectus as per the oral agreement with a
representative of the Commission, which agreement has been
confirmed in a letter from the Company to the Commission dated
December 7, 1993, a copy of which has been furnished to each of the
Underwriters, and has been prepared in accordance with such
agreement, and (E) no financial information relating to other
subsidiaries or entities that are not Subsidiary Guarantors is
included therein (except that ICM Mortgage Corporation is reflected
therein as an investment on the equity method of accounting of
Pulte Home Corporation on the balance sheet included in the
Subsidiary Guarantor Segment Financial Information as stated
therein).
(vi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (B) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular dividends
on the Common Stock in amounts per share that are consistent with
past practice, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
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(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
state of Michigan with corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations
under this Agreement, the Pricing Agreement, the Indenture and the
Offered Securities; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(viii) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and, in the case of the Subsidiary Guarantors, to enter
into and perform its obligations under this Agreement, the Pricing
Agreement, the Indenture and the Guarantees, and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise; other than as disclosed in the Prospectus and
except for pledges of stock of certain non-Subsidiary Guarantor
limited purpose subsidiaries of the Company, all of the issued and
outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(ix) The authorized, issued and outstanding capital stock of
the Company is set forth in the Prospectus under the captions
"Description of Capital
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Stock" and "Capitalization" (except for subsequent issuances,
if any, pursuant to reservations, agreements, employee benefit
plans or the exercise of convertible securities referred to in the
Prospectus); and the shares of issued and outstanding Common Stock
have been duly authorized and validly issued and are fully paid and
non-assessable.
(x) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject other than such
defaults which, in the aggregate, would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and
the execution, delivery and performance of this Agreement, the
Pricing Agreement, the Indenture, the Offered Securities and, in
the case of the Subsidiary Guarantors, the Guarantees, and the
consummation of the transactions contemplated herein and therein
and compliance by each of the Company and the Subsidiary Guarantors
with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to (A) any contract or agreement in respect of
Indebtedness (as defined in the Indenture) of the Company or any
Subsidiary Guarantor or (B) any indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them
may be bound which is included as an exhibit to the Registration
Statement or any document filed with the Commission which is
incorporated in the Registration Statement by reference, nor will
such action result in any violation of the provisions of the
charter or by-laws of the Company or any of the Subsidiary
Guarantors or any applicable law, administrative regulation or
administrative or court decree.
(xi) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company,
is imminent; and the Company
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is not aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or
contractors which would reasonably be expected to result in any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its subsidiaries, which is
required to be disclosed in the Registration Statement (other than
as disclosed therein), or which would reasonably be expected to
result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, or which would reasonably be expected to materially and
adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement;
all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; none of the Company, its subsidiaries or any of its or
their assets or properties is in violation of or subject to any
applicable federal, state or local environmental law, statute,
regulation, rule, order or decree under which the Company or any of
its subsidiaries or their assets or properties are liable for any
liabilities relating to environmental regulations including
environmental remediation, environmental contamination prevention
or environmental monitoring which is required to be disclosed in
the Prospectus under the 1933 Act or the 1933 Act Regulations; and
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xiii) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or
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confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, "patent and
proprietary rights") presently employed by them in connection with
the business now operated by them, and neither the Company nor any
of its subsidiaries has received any notice or is otherwise aware
of any infringement of or conflict with asserted rights of others
with respect to any patent or proprietary rights, or of any facts
which would render any patent and proprietary rights invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result
in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Subsidiary Guarantors considered as one
enterprise.
(xiv) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the offering, issuance or sale of the Offered Securities hereunder,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and the qualification of the
Indenture under the 1939 Act.
(xv) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary
to conduct the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate,
if the subject of any unfavorable decision, ruling or finding,
would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise or
the Subsidiary Guarantors considered as one enterprise.
(xvi) This Agreement has been, and, at the Representation
Date, the Pricing Agreement will have been, duly executed and
delivered by the Company and the Subsidiary Guarantors.
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(xvii) There are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under
the 1933 Act.
(xviii) The Indenture has been duly authorized by the Company
and the Subsidiary Guarantors and, at the Closing Time, will
have been duly qualified under the 1939 Act and duly executed and
delivered by the Company and the Subsidiary Guarantors and will
constitute a valid and binding agreement of the Company and the
Subsidiary Guarantors, enforceable against the Company and the
Subsidiary Guarantors in accordance with its terms, except as the
enforcement thereof may be limited by fraudulent conveyance,
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditor's rights generally or by
general equitable principles.
(xix) The Offered Securities have been duly authorized and,
at the Closing Time, will have been duly executed and issued by the
Company and, when authenticated in the manner provided for in the
Indenture and delivered in accordance with this Agreement against
payment of the purchase price therefor specified in the Pricing
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms except as the enforcement thereof may be limited by
fraudulent conveyance, bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and
will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xx) The Guarantees have been duly authorized by the
Subsidiary Guarantors, and when such Guarantees are executed and
endorsed upon the Offered Securities and delivered in accordance
with the terms of the Indenture, such Guarantees will constitute
valid and binding obligations of the Subsidiary Guarantors entitled
to the benefits of the Indenture, enforceable against the
Subsidiary Guarantors in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is
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considered in a proceeding in equity or at law); and the
Guarantees conform in all material respects to the description
thereof in the Prospectus.
(xxi) The Offered Securities, the Guarantees and the
Indenture will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be
in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement.
(xxii) The Offered Securities rank and will rank on a parity
with all unsecured and unsubordinated Indebtedness of the Company
that is outstanding on the date hereof or that may be incurred
hereafter, including the Senior Indebtedness (as defined in the
indenture, dated as of October 24,1995, among the Company, the
Subsidiary Guarantors and the First National Bank of Chicago, a
national banking association, as trustee relating to the Company's
subordinated indebtedness (the "Subordinated Indenture")), and
senior to all unsecured and subordinated Indebtedness of the
Company that is outstanding on the date hereof or that may be
incurred hereafter, including the Subordinated Indebtedness (as
defined in the Subordinated Indenture). The Guarantees rank and
will rank on a parity with all unsecured and unsubordinated
Indebtedness of the Subsidiary Guarantors that is outstanding on
the date hereof or that may be incurred hereafter, including the
Guarantor Senior Indebtedness (as defined in the Subordinated
Indenture, but excluding the Guarantor Senior Subordinated
Indebtedness (as defined in the Subordinated Indenture)), and
senior to all senior subordinated and subordinated Indebtedness of
the Subsidiary Guarantors that is outstanding on the date hereof or
that may be incurred hereafter, including Guarantor Subordinated
Indebtedness (as defined in the Subordinated Indenture) and
Guarantor Senior Subordinated Indebtedness.
(xxiii) Neither the Company nor any of the Subsidiary
Guarantors is, or will be after the consummation of the offering of
the Offered Securities under the terms hereof and the application
of the net proceeds received therefrom in accordance with the
information contained in the Prospectus under the caption "Use of
Proceeds," an "investment company" as that term is defined in the
Investment Company Act of
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1940, as amended, or subject to regulation under such act.
(xxiv) All of Pulte Home Corporation's direct or indirect
subsidiaries, which individually or in the aggregate account for 2%
or more of the Company's total revenues in respect of its home
building business, are each Subsidiary Guarantors.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, at
the price set forth in the Pricing Agreement, the aggregate principal
amount of Offered Securities set forth in Schedule A opposite the name of
such Underwriter (except as otherwise provided in the Pricing Agreement).
(1) If the Company has elected not to rely upon Rule 430A
under the 1933 Act Regulations, the initial public offering price
and the purchase price to be paid by the several Underwriters for
the Offered Securities, and the interest rate on the Offered
Securities, have each been determined and set forth in the Pricing
Agreement, dated the date hereof, and the Prospectus Supplement
will be filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations in accordance with Section 3(a) hereof.
(2) If the Company has elected to rely upon Rule 430A under
the 1933 Act Regulations, the purchase price to be paid by the
several Underwriters for the Offered Securities shall be an amount
equal to the initial public offering price, less an amount to be
determined by agreement among the Underwriters and the Company.
The initial public offering price of the Offered Securities shall
be a fixed price to be determined by agreement between the
Underwriters and the Company. The interest rate on the Offered
Securities likewise shall be determined by agreement between the
Company and the Underwriters. The initial public offering price,
the interest rate and the purchase price, when so determined, shall
be set forth in the Pricing
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<PAGE> 15
Agreement. In the event that such prices and interest rate
have not been agreed upon and the Pricing Agreement has not been
executed and delivered by the parties thereto by the close of
business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without
liability of any party to any other party, unless otherwise agreed
to by the Company and the Underwriters.
(b) Payment of the purchase price for, and delivery of certificates
for, the Offered Securities shall be made at the office of Mayer, Brown
& Platt, 190 South LaSalle Street, Chicago, Illinois 60603, or at such
other place as shall be agreed upon by the Underwriters and the Company,
at 10:00 A.M. on the third business day (unless postponed in accordance
with the provisions of Section 10) following the date of execution of the
Pricing Agreement, or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriters and the
Company (such time and date of payment and delivery being herein called
the "Closing Time"). Notwithstanding the foregoing, delivery of the
Offered Securities at the Closing Time may be made through the facilities
of The Depository Trust Company with the agreement of the Underwriters
and the Company. Payment shall be made to the Company by certified or
official bank check or checks drawn in New York Clearing House funds or
similar next day funds payable to the order of the Company, against
delivery to the Underwriters of certificates for the Offered Securities
to be purchased by them. Certificates for the Offered Securities shall be
in such denominations and registered in such names as the Underwriters
may request in writing at least two business days before the Closing
Time. Any of the Underwriters may (but shall not be obligated to) make
payment of the purchase price for the Offered Securities to be purchased
by an Underwriter whose check has not been received by the Closing Time,
but such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Offered Securities will be made
available for examination and packaging by the Underwriters not later
than 10:00 A.M. on the last business day prior to the Closing Time at the
offices of Mayer, Brown & Platt, 787 Seventh Avenue, New York, New York,
10019.
SECTION 3. Covenants of the Company. The Company and the Subsidiary
Guarantors, jointly and severally, covenant with each Underwriter as follows:
(a) As promptly as practicable following execution of the Pricing
Agreement, the Company and the Subsidiary Guarantors will prepare a
Prospectus Supplement that
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<PAGE> 16
complies with the 1933 Act and the 1933 Act Regulations and that sets
forth the initial public offering price of the Offered Securities, the
purchase price to be paid by the Underwriters for the Offered Securities,
the interest rate on the Offered Securities, the names of the
Underwriters acting as co-managers in connection with the offering, any
selling concession and reallowance, and such other information as the
Underwriters, the Company and the Subsidiary Guarantors deem appropriate
in connection with the offering of the Offered Securities. The Company
and the Subsidiary Guarantors will promptly, but in no event later than
the second business day following the execution of the Pricing Agreement,
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of the Prospectus and the Prospectus
Supplement as the Underwriters may reasonably request.
(b) The Company will notify the Underwriters immediately, and
confirm the notice in writing with respect to the Offered Securities, (i)
of the effectiveness of the Registration Statement and any amendment
thereto (including any post-effective amendment), (ii) of the transmittal
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated
by reference in the Prospectus, (iii) of the receipt of any comments from
the Commission with respect to the Registration Statement, the
Prospectus, or any document incorporated by reference therein, (iv) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose. The Company and the
Subsidiary Guarantors will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(c) The Company and the Subsidiary Guarantors will give the
Underwriters notice of their intention to file or prepare any amendment
to the Registration Statement (including any post-effective amendment) or
any amendment or supplement to the Prospectus (including any revised
prospectus which the Company and the Subsidiary Guarantors propose for
use by the Underwriters in connection with the offering of the Offered
Securities which differs from the prospectus on file at the Commission at
the time the Registration Statement becomes effective, whether or not
such revised prospectus is required to be filed pursuant to
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<PAGE> 17
Rule 424(b) of the 1933 Act Regulations), whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Underwriters with copies
of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any
such amendment or supplement or use any such prospectus to which the
Underwriters or counsel for the Underwriters shall reasonably object.
(d) The Company and the Subsidiary Guarantors will deliver to the
Underwriters as many signed copies of the Registration Statement as
originally filed and of each amendment thereto with respect to the
Offered Securities (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated
by reference therein) and signed copies of all consents and certificates
of experts, as the Underwriters may reasonably request and will also
deliver to the Underwriters a conformed copy of the Registration
Statement as originally filed and of each amendment thereto with respect
to the Offered Securities (without exhibits) for each of the
Underwriters.
(e) The Company and the Subsidiary Guarantors will furnish to each
Underwriter, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number
of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder.
(f) The Company and each Subsidiary Guarantor will comply with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit
the completion of the offering of the Offered Securities as contemplated
in this Agreement and in the Prospectus. If any event shall occur as a
result of which it is necessary, in the opinion of counsel for the
Company or counsel for the Underwriters, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
the Company and the Subsidiary Guarantors will forthwith amend or
supplement the Prospectus, subject to Section 3(c) hereof, so that, as so
amended or supplemented, the Prospectus will 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 the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company and the
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Subsidiary Guarantors will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(g) The Company and the Subsidiary Guarantors will each endeavor,
in cooperation with the Underwriters, to qualify the Offered Securities
and the Guarantees for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriters may designate; provided, however, that the Company and the
Subsidiary Guarantors shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which the Company or the Subsidiary
Guarantors are not so qualified. In each jurisdiction in which the
Offered Securities and the Guarantees are being offered, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement.
The Company and each Subsidiary Guarantor will also supply each
Underwriter with such information as is necessary for the determination
of the legality of the Offered Securities and the Guarantees for
investment under the laws of such jurisdictions as the Underwriters may
reasonably request.
(h) The Company and the Subsidiary Guarantors will make generally
available to its security holders as soon as practicable after the close
of the period covered thereby, but in no event later than required by
Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act
Regulations, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve
month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement. Such earnings statements shall
contain the Subsidiary Guarantor Segment Financial Information in
substantially the form as contained in the Prospectus, subject to the
requirements of the Company and the Subsidiary Guarantors to comply with
the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations. The Company and the Subsidiary Guarantors
shall each use its best efforts to insure that the Subsidiary Guarantors
do not become subject to the periodic report filing requirements
promulgated under Sections 13 and 15(d) of the 1934 Act with respect to
the Offered Securities.
(i) The Company will use the net proceeds received by it from the
sale of the Offered Securities in the manner specified in the Prospectus
under "Use of Proceeds".
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(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(k) For a period of three years after the Closing Time, the Company
will furnish to the Underwriters copies of all reports and communications
delivered to the Company's stockholders or to holders of the Offered
Securities as a class and will also furnish copies of all reports
(excluding exhibits) filed with the Commission on forms 8-K, 10-Q and
10-K, and all other reports and information furnished to its stockholders
generally, not later than the time such reports are first furnished to
stockholders generally.
(l) During a period of 30 days from the date of the Prospectus, the
Company will not, without the Underwriters' prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Offered Securities or securities
similar to the Offered Securities (except for the Offered Securities sold
to the Underwriters pursuant to this Agreement), except as is otherwise
provided in the Pricing Agreement.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the printing of this Agreement, the
Indenture and the Pricing Agreement, (iii) the preparation, issuance and
delivery of the certificates for the Offered Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel and accountants, (v)
the qualification of the Offered Securities and the Guarantees under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any Legal Investment Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, of each preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto, (vii) the printing and delivery to
the Underwriters of copies of the Blue Sky Survey and any Legal Investment
Survey, (viii) the qualification of the Offered Securities for trading in the
form of global securities through the facilities of The Depository Trust
Company or any other entity registered as a clearing agency pursuant to the
provisions of Section 17A of the 1934 Act, or other applicable statute or
regulation, (ix) the fees and expenses of the Trustee,
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including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Offered Securities; and (x) any fees
payable in connection with the rating of the Offered Securities, (xi) any fees
or expenses incurred in connection with any filing for review of the offering
of the Offered Securities and the Guarantees with the National Association of
Securities Dealers, Inc., including the reasonable fees and disbursements of
counsel therewith, (xii) any fees payable, including the reasonable fees and
disbursements of counsel, in connection with the listing of the Offered
Securities for trading on the New York Stock Exchange.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) At the Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission. If
the Company has elected to rely upon Rule 430A of the 1933 Act
Regulations, the price of and the interest rate on the Offered Securities
and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period and prior to the
Closing Time the Company shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the 1933
Act Regulations.
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Honigman Miller Schwartz and Cohn, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
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(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the state of Michigan.
(ii) Each of the Company and the Subsidiary Guarantors
has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in
the Registration Statement and to enter into and perform its
obligations under this Agreement, the Pricing Agreement, the
Indenture, the Offered Securities and, in the case of the
Subsidiary Guarantors, the Guarantees.
(iii) To the best of their knowledge and information,
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required except
in such jurisdictions in which the failure to so qualify
would not have a material adverse effect on the business of
the Company and its subsidiaries taken as a whole or on the
enforceability of this Agreement, the Indenture, the Offered
Securities or the Guarantees.
(iv) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans
or the exercise of convertible securities referred to in the
Prospectus), and the shares of issued and outstanding Common
Stock have been duly authorized and validly issued and are
fully paid and non-assessable.
(v) The issuance of the Offered Securities is not
subject to preemptive or other similar rights arising by
operation of law, under the charter or by-laws of the Company
or, to their actual knowledge and information, otherwise.
(vi) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Registration Statement and, to the best
of their knowledge and information, is
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duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which such qualification is required except in such
jurisdictions in which the failure to so qualify would not
have a material adverse effect on the business of the Company
and its subsidiaries taken as a whole or on the
enforceability of this Agreement, the Indenture, the Offered
Securities or the Guarantees; all of the issued and
outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable and, to the best of their knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity other
than as disclosed in the Prospectus and except for pledges of
stock of certain non-Subsidiary Guarantor limited purpose
subsidiaries of the Company.
(vii) This Agreement and the Pricing Agreement have
each been duly authorized, executed and delivered by the
Company and the Subsidiary Guarantors and each constitutes
the valid and binding agreement of the Company and the
Subsidiary Guarantors in accordance with its terms, except as
the enforcement thereof may be limited by fraudulent
conveyance, bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles.
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the
Commission.
(ix) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial statements and supporting
schedules included therein, as to which no opinion need be
rendered) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act
Regulations.
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(x) To the best of their knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed or
incorporated by reference therein, and all pending legal or
governmental proceedings to which the Company or any
subsidiary is a party or to which any of their property is
subject which are not described in the Registration
Statement, including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not
material.
(xi) The information in the Prospectus under
"Description of Debt Securities," "Description of Other
Indebtedness" and "Certain Provisions of Michigan Business
Corporation Act," to the extent that it constitutes matters
of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by them and is
correct in all material respects.
(xii) To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references
thereto are correct in all material respects, and to the best
of their knowledge no default exists in the due performance
or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument so described,
referred to, or filed or incorporated by reference.
(xiii) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the offering, issuance or sale of the Offered
Securities to the Underwriters, except such as may be
required under the 1933 Act or the 1933 Act Regulations or
state securities law and the qualification of the Indenture
under the 1939 Act; and, to the best of their knowledge and
information, the execution, delivery and
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performance of this Agreement, the Pricing Agreement,
the Indenture, the Offered Securities and, in the case of the
Subsidiary Guarantors, the Guarantees, and the consummation
of the transactions contemplated herein and therein and
compliance by each of the Company and the Subsidiary
Guarantors with its obligations hereunder and thereunder will
not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of
its subsidiaries is subject except for such conflicts,
breaches, defaults, liens, charges or encumbrances which are
not material to the operations of the Company and its
subsidiaries taken as a whole or to the execution, delivery
and performance of this Agreement, the Indenture, the Offered
Securities and the Guarantees or the consummation of the
transactions contemplated herein and therein, nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company, or any applicable law,
administrative regulation or administrative or court decree.
(xiv) To the best of their knowledge and information,
there are no persons with registration or other similar
rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company
under the 1933 Act.
(xv) The Indenture has been duly authorized, executed
and delivered by the Company and the Subsidiary Guarantors
and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a valid and binding
agreement of the Company and the Subsidiary Guarantors in
accordance with its terms, except as the enforcement thereof
may be limited by fraudulent conveyance, bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles.
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(xvi) The Offered Securities are in the form
contemplated by the Indenture, have been duly authorized by
the Company and, when executed by the Company and
authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) and delivered
against payment of the purchase price therefor specified in
the Pricing Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement
therefor may be limited by fraudulent conveyance, bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditor's rights generally or by
general equitable principles, and will be entitled to the
benefits of the Indenture.
(xvii) The Guarantees are in the form contemplated by
the Indenture, have been duly authorized by the
Subsidiary Guarantors and, when endorsed on the Offered
Securities which have been executed by the Company and
authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee and the Company) and
delivered against payment of the purchase price therefor
specified in the Pricing Agreement, will constitute valid and
binding obligations of the Subsidiary Guarantors, enforceable
against the Subsidiary Guarantors in accordance with their
terms, except as the enforcement therefor may be limited by
fraudulent conveyance, bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting creditor's rights generally or by general
equitable principles, and will be entitled to the benefits of
the Indenture.
(xviii) The Indenture has been qualified under the 1939
Act.
(xix) The Offered Securities, the Guarantees and the
Indenture conform in all material respects to the
descriptions thereof contained in the Prospectus.
(xx) The Offered Securities rank and will rank on a
parity with all unsecured and unsubordinated Indebtedness of
the Company that is
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outstanding on the date hereof or that may be incurred
hereafter, including the Senior Indebtedness (as defined in
the Subordinated Indenture), and senior to all unsecured and
subordinated Indebtedness of the Company that is outstanding
on the date hereof or that may be incurred hereafter,
including the Subordinated Indebtedness (as defined in the
Subordinated Indenture).
(xxi) The Guarantees rank and will rank on a parity
with all unsecured and unsubordinated Indebtedness of
the Subsidiary Guarantors that is outstanding on the date
hereof or that may be incurred hereafter, including the
Guarantor Senior Indebtedness (as defined in the Subordinated
Indenture, but excluding Guarantor Senior Subordinated
Indebtedness), and senior to all senior subordinated and
subordinated Indebtedness of the Subsidiary Guarantors that
is outstanding on the date hereof or that may be incurred
hereafter, including Guarantor Senior Subordinated
Indebtedness (as defined in the Subordinated Indenture) and
Guarantor Subordinated Indebtedness (as defined in the
Subordinated Indenture).
(xxii) Each document filed pursuant to the 1934 Act
(other than the financial statements and supporting schedule
and other financial data included or incorporated by
reference therein, as to which no opinion need be rendered)
and incorporated or deemed to be incorporated by reference
(including the information, if any, deemed incorporated by
reference pursuant to Rule 430A under the 1933 Act
Regulations) in the Prospectus complied when so filed as to
form in all material respects with the 1934 Act and the 1934
Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of
Mayer, Brown & Platt, counsel for the Underwriters, with respect to
the matters set forth in (i), (vii) to (viii), (ix) and (xv) to
(xix), inclusive, of subsection (b)(1) of this Section.
(3) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, Honigman Miller Schwartz
and Cohn and Mayer, Brown & Platt shall each additionally state
that nothing has come to their attention that would lead them to
believe that the Registration Statement (except
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for financial statements and schedules and other financial data
included or incorporated by reference therein, as to which counsel
need make no statement), at the time it became effective or at the
Representation Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the Prospectus (except for financial statements and
schedules and other financial data included or incorporated by
reference therein and that part of the Registration Statement which
constitutes the Trustee's Statement of Eligibility and
Qualification under the 1939 Act (Form T-1), as to which counsel
need make no statement), at the Representation Date (unless the
term "Prospectus" refers to a prospectus which has been provided to
the Underwriters by the Company for use in connection with the
offering of the Offered Securities which differs from the
Prospectus on file at the Commission at the time the Registration
Statement becomes effective, in which case at the time it is first
provided to the Underwriters for such use) or at the Closing Time,
included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. In giving its
opinions, Mayer, Brown & Platt may rely as to matters of Michigan
law upon the opinion of Honigman Miller Schwartz and Cohn, which
opinion shall be in form and substance reasonably satisfactory to
counsel for the Underwriters.
(c) At the Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company, dated as
of the Closing Time, to the effect that (i) there has been no such
material adverse change, or any development involving a prospective
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the
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Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement, the
Underwriters shall have received from Ernst & Young LLP a letter dated
such date, in form and substance satisfactory to the Underwriters, to the
effect that (i) they are independent auditors with respect to the Company
and its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion that the consolidated financial
statements and supporting schedule, which include the Subsidiary
Guarantor Segment Financial Information, included or incorporated by
reference in the Registration Statement and covered by their opinions
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
except that they may note that, as agreed by a representative of the
Commission, separate financial statements of the Subsidiary Guarantors as
required by Rule 3-10 of Regulation S-X have been omitted; (iii) based
upon limited procedures set forth in detail in such letter, nothing has
come to their attention which causes them to believe that (A) the
unaudited consolidated financial statements of the Company and its
subsidiaries, which include the Subsidiary Guarantor Segment Financial
Information, incorporated by reference in the Registration Statement do
not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations or
are not presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited consolidated financial statements incorporated by reference in
the Registration Statement, except that they may note that, as agreed by
a representative of the Commission, separate financial statements of the
Subsidiary Guarantors as required by Rule 3-10 of Regulation S-X have
been omitted, (B) the unaudited amounts of revenues, net income and net
income per share set forth under "Selected Consolidated Financial
Information" in the Prospectus were not determined on a basis
substantially consistent with that used in determining the corresponding
amounts in the audited financial statements incorporated by reference in
the Registration Statement, or (C) at a specified date not more than
three days prior to the date of this Agreement, there has been any change
in the capital stock of the Company or any increase in the consolidated
long term debt of the Company and its subsidiaries or any decrease in
consolidated
-28-
<PAGE> 29
stockholders' equity as compared with the amounts shown in the June 30,
1997 balance sheet included in the Registration Statement or, during the
period from June 30, 1997 to a specified date not more than three days
prior to the date of this Agreement, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues, net income or net income per share of the Company
and its subsidiaries, except in all instances for changes, increases or
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages
and financial information which are included or incorporated by reference
in the Registration Statement and Prospectus and which are specified by
the Underwriters, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial
and other records of the Company and its subsidiaries identified in such
letter.
(e) At the Closing Time the Underwriters shall have received from
Ernst & Young LLP a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section, except that the specified date
referred to shall be a date not more than three days prior to the Closing
Time and, if the Company has elected to rely on Rule 430A of the 1933 Act
Regulations, to the further effect that they have carried out procedures
as specified in clause (iv) of subsection (d) of this Section with
respect to certain amounts, percentages and financial information
specified by the Underwriters and deemed to be a part of the Registration
Statement pursuant to Rule 430(A)(b) and have found such amounts,
percentages and financial information to be in agreement with the records
specified in such clause (iv).
(f) At the Closing Time counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for
the purpose of enabling them to pass upon the issuance and sale of the
Offered Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
-29-
<PAGE> 30
(g) At the Closing Time, the Offered Securities shall be rated at
least Baa3 by Moody's Investor's Service Inc. and BBB by Standard &
Poor's Corporation, and the Company shall have delivered to the
Underwriters a letter, dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Underwriters, confirming
that the Offered Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Offered Securities or any other debt securities of the
Company or any Subsidiary Guarantor by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
securities rating agency shall have publicly announced that it has under
watch, surveillance or review, with possible negative implications, its
rating of the Offered Securities or any other debt securities of the
Company or any Subsidiary Guarantor.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Company at any time at or prior to the Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and each
Subsidiary Guarantor, jointly and severally, agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) of the
1933 Act Regulations, if applicable, or the 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 included
in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the 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;
-30-
<PAGE> 31
(2) against any and all loss, liability, claim, damage 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 any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred 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 statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of 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
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the information deemed to be
part of the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration 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 against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the 1933 Act Regulations, or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto) or
-31-
<PAGE> 32
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. 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 to so 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. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. 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 parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties 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 6 or Section
7 hereof (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) Settlement without Consent if Failure to Reimburse. 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 6(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
-32-
<PAGE> 33
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.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, 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, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, from the offering of the
Debt Securities pursuant to the applicable Terms Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Debt Securities pursuant to the applicable Terms Agreement shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Debt Securities (before deducting expenses) received by the
Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of such Debt Securities as set forth on such
cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and
-33-
<PAGE> 34
expenses incurred by an indemnified party and referred to above in this
Section 7 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 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
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 7, each person, if any, who controls an
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
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration 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
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number or aggregate principal amount, as the
case may be, of Initial Debt Securities set forth opposite their respective
names in the applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Offered Securities to the Underwriters.
-34-
<PAGE> 35
SECTION 9. Termination of Agreement.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has
been, since the date of this Agreement or since the respective dates as
of which information is given in the Registration Statement, any material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or elsewhere
or any outbreak of hostilities or escalation thereof or other calamity or
crisis the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Offered Securities or to
enforce contracts for the sale of the Offered Securities, or (iii) if
trading in the Common Stock has been suspended by the Commission, or if
trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said Exchanges or by order of the Commission
or any other governmental authority, or if a banking moratorium has been
declared by either Federal, New York or Michigan authorities, or (iv)
there shall have occurred a downgrading in the rating assigned to the
Offered Securities or any other debt securities of the Company or any
Subsidiary Guarantor by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act or any such securities rating agency
shall have publicly announced that it has under watch, surveillance or
review, with possible negative implications, its rating of the Offered
Securities or any debt securities of the Company or any Subsidiary
Guarantor.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
SECTION 10. Default By One or More of The Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the securities
which it or they are obligated to purchase under this Agreement and the Pricing
Agreement (the "Defaulted Securities"), the remaining Underwriter or
Underwriters, as the case may be, shall have the right, but not
-35-
<PAGE> 36
the obligation, within 24 hours thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Securities upon the terms
herein set forth; if, however, the non-defaulting Underwriter or Underwriters,
as the case may be, shall not have completed such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Securities, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to
the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Securities, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the non-defaulting Underwriter or Underwriters, as the
case may be, or the Company shall have the right to postpone the Closing Time
for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters at Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, New York 10281,
attention of Thomas Casey, Vice President; notices to the Company or the
Subsidiary Guarantors shall be directed to it at 33 Bloomfield Hills Parkway,
Suite 200, Bloomfield Hills, Michigan, 48304, attention of James A.
Weissenborn, Vice President and Treasurer.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters and the Company
and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters and the Company
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the
-36-
<PAGE> 37
Pricing Agreement or any provision herein or therein contained. This
Agreement and the Pricing Agreement and all conditions and provisions hereof
and thereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day refer to
New York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters, the Company and the Subsidiary Guarantors
in accordance with its terms.
Very truly yours,
PULTE CORPORATION
By /s/ John Stoller
----------------------------
Title: Vice President
Guarantors
BUILDERS' SUPPLY & LUMBER CO., INC.
CAMBRIDGE SOFTWARE, INC.
CANTERBURY COMMUNITIES, INC.
CANTERBURY DIVERSIFIED BUILDING
CORPORATION
CEIBA HOMES INC.
CHARLOTTE CLASSIC HOMES, INC.
DEAN REALTY COMPANY
GREENSBORO CLASSIC HOMES, INC.
GULF PARTNERS, INC.
GURABO HOMES INC.
JAMES T. LYNCH, INC.
OAKTON BUILDING CORPORATION
-37-
<PAGE> 38
PALMVILLE DEVELOPMENT CORP.
PBW CORPORATION
PHC TITLE CORPORATION
PHM REALTY, INC.
PHT TITLE CORPORATION
PRESERVE I, INC.
PRESERVE II, INC.
PULTE DEVELOPMENT CORPORATION
PULTE HOME CARIBBEAN CORPORATION
PULTE HOME CORPORATION
PULTE HOME CORPORATION OF DELAWARE
VALLEY
PULTE HOME CORPORATION OF
MASSACHUSETTS
PULTE HOMES OF TEXAS, L.P.
By: PULTE NEVADA I, INC.,its
general partner
PULTE HOMES OF GREATER KANSAS
CITY, INC.
PULTE HOMES OF MICHIGAN CORPORATION
PULTE HOMES OF MINNESOTA
CORPORATION
PULTE HOMES OF OHIO CORPORATION
PULTE HOMES OF SOUTH CAROLINA, INC.
PULTE LAND DEVELOPMENT CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE PAYROLL CORPORATION
PULTE REAL ESTATE COMPANY
RALEIGH CLASSIC HOMES, INC.
SALINAS BUILDERS, INC.
SALINAS HOMES, INC.
SEAN/CHRISTOPHER HOMES, INC.
SPRINGFIELD GOLF CLUB, INC.
WIL CORPORATION
By /s/ John Stoller
------------------------
Title: Vice President
-38-
<PAGE> 39
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
LEHMAN BROTHERS INC.
SBC WARBURG DILLON READ INC.
By /s/ Robert Schmiedeler
----------------------------
Authorized Signatory
-39-
<PAGE> 40
SCHEDULE A
<TABLE>
<CAPTION>
Aggregate
Principal
Amount
of Offered
Name of Underwriter Securities
------------------- ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . $ 50,000,000
Lehman Brothers Inc. . . . . . . . . . . $ 50,000,000
SBC Warburg Dillon Read Inc. . . . . . . $ 50,000,000
------------
Total . . . . . . . . . . . $150,000,000
============
</TABLE>
<PAGE> 1
EXHIBIT 1.2
$150,000,000 AGGREGATE PRINCIPAL AMOUNT OF
7 5/8% SENIOR NOTES DUE OCTOBER 15, 2017
PULTE CORPORATION
ISSUER
BUILDERS' SUPPLY & LUMBER CO., INC.
CAMBRIDGE SOFTWARE, INC.
CANTERBURY COMMUNITIES, INC.
CANTERBURY DIVERSIFIED BUILDING CORPORATION
CEIBA HOMES INC.
CHARLOTTE CLASSIC HOMES, INC.
DEAN REALTY COMPANY
GREENSBORO CLASSIC HOMES, INC.
GULF PARTNERS, INC.
GURABO HOMES INC.
JAMES T. LYNCH, INC.
OAKTON BUILDING CORPORATION
PALMVILLE DEVELOPMENT CORP.
PBW CORPORATION
PHC TITLE CORPORATION
PHM REALTY, INC.
PHT TITLE CORPORATION
PRESERVE I, INC.
PRESERVE II, INC.
PULTE DEVELOPMENT CORPORATION
PULTE HOME CARIBBEAN CORPORATION
PULTE HOME CORPORATION
PULTE HOME CORPORATION OF THE DELAWARE VALLEY
PULTE HOME CORPORATION OF MASSACHUSETTS
PULTE HOMES OF TEXAS, L.P.
PULTE HOMES OF GREATER KANSAS CITY, INC.
PULTE HOMES OF MICHIGAN CORPORATION
PULTE HOMES OF MINNESOTA CORPORATION
PULTE HOMES OF OHIO CORPORATION
PULTE HOMES OF SOUTH CAROLINA, INC.
PULTE LAND DEVELOPMENT CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE PAYROLL CORPORATION
PULTE REAL ESTATE COMPANY
RALEIGH CLASSIC HOMES, INC.
SALINAS BUILDERS, INC.
SALINAS HOMES, INC.
SEAN/CHRISTOPHER HOMES, INC.
SPRINGFIELD GOLF CLUB, INC.
WIL CORPORATION
SUBSIDIARY GUARANTORS
<PAGE> 2
PRICING AGREEMENT
October 9, 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Lehman Brothers Inc.
SBC Warburg Dillon Read Inc.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated
October 9, 1997 (the "Purchase Agreement") among Pulte Corporation (the
"Company"), the Subsidiary Guarantors named therein (the "Subsidiary
Guarantors") and the several Underwriters named in Schedule A hereto or thereto
(the "Underwriters"). The Purchase Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and conditions set forth
therein, of $150,000,000 aggregate principal amount of the Company's 7 5/8%
Senior Notes due October 15, 2017 (the "Offered Securities"). This Agreement
is the Pricing Agreement referred to in the Purchase Agreement. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
Pursuant to Section 2 of the Purchase Agreement, each of the Company and
the Subsidiary Guarantors agrees with each Underwriter as follows:
1. The initial public offering price of the Offered Securities shall be
98.550% of the principal amount thereof, plus accrued interest, if any, from
the date of issuance.
2. The purchase price to be paid by the Underwriters for the Offered
Securities shall be 97.675% of the principal amount thereof.
3. The interest rate on the Offered Securities shall be 7 5/8% per
annum.
-2-
<PAGE> 3
4. The Offered Securities shall be subject to the covenants contained in
Sections 1006 and 1007 of the Indenture relating to Restrictions on
Creation of Secured Debt and Restrictions on Sale and Leaseback Transactions
and the covenants contained in Article Eight of the Indenture relating to
Consolidation, Merger, Conveyance, Transfer or Lease.
5. The Offered Securities shall be subject to defeasance in accordance
with the terms of Article Fourteen of the Indenture.
6. The Offered Securities shall be guaranteed by the Subsidiary
Guarantors on a senior basis.
7. Payment shall be made to the Company by wire transfer of same day
funds pursuant to written instructions received by the Underwriters no later
than three business days before the Closing Time.
8. The Closing shall occur at 9:00 a.m. Chicago time on October 15, 1997
at the offices of Mayer, Brown & Platt, 190 South LaSalle Street, Chicago,
Illinois.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement between the
Underwriters, the Company and the Subsidiary Guarantors in accordance with its
terms.
Very truly yours,
PULTE CORPORATION
By /s/ John Stoller
------------------------
Title: Vice President
Guarantors
BUILDERS' SUPPLY & LUMBER CO., INC.
CAMBRIDGE SOFTWARE, INC.
CANTERBURY COMMUNITIES, INC.
CANTERBURY DIVERSIFIED BUILDING
CORPORATION
CEIBA HOMES INC.
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<PAGE> 4
CHARLOTTE CLASSIC HOMES, INC.
DEAN REALTY COMPANY
GREENSBORO CLASSIC HOMES, INC.
GULF PARTNERS, INC.
GURABO HOMES INC.
JAMES T. LYNCH, INC.
OAKTON BUILDING CORPORATION
PALMVILLE DEVELOPMENT CORP.
PBW CORPORATION
PHC TITLE CORPORATION
PHM REALTY, INC.
PHT TITLE CORPORATION
PRESERVE I, INC.
PRESERVE II, INC.
PULTE DEVELOPMENT CORPORATION
PULTE HOME CARIBBEAN CORPORATION
PULTE HOME CORPORATION
PULTE HOME CORPORATION OF DELAWARE
VALLEY
PULTE HOME CORPORATION OF
MASSACHUSETTS
PULTE HOMES OF TEXAS, L.P.
By: PULTE NEVADA I, INC., its
general partner
PULTE HOMES OF GREATER KANSAS
CITY, INC.
PULTE HOMES OF MICHIGAN CORPORATION
PULTE HOMES OF MINNESOTA
CORPORATION
PULTE HOMES OF OHIO CORPORATION
PULTE HOMES OF SOUTH CAROLINA, INC.
PULTE LAND DEVELOPMENT CORPORATION
PULTE LIFESTYLE COMMUNITIES, INC.
PULTE PAYROLL CORPORATION
PULTE REAL ESTATE COMPANY
RALEIGH CLASSIC HOMES, INC.
SALINAS BUILDERS, INC.
SALINAS HOMES, INC.
SEAN/CHRISTOPHER HOMES, INC.
SPRINGFIELD GOLF CLUB, INC.
WIL CORPORATION
By /s/ John Stoller
------------------------
Title: Vice President
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CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
LEHMAN BROTHERS INC.
SBC WARBURG DILLON READ INC.
By /s/ Robert Schmiedeler
--------------------------
Authorized Signatory
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