<COVER LETTER>
April 6, 1994
Securities and Exchange
Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Lennar Corporation
Dear Sirs:
On behalf of Lennar Corporation (the "Company"), and in
accordance with the Securities Act of 1933, as amended, and Rule
101(a) of Regulation S-T, we submit for electronic filing a copy of
a Registration Statement on Form S-3, including exhibits relating
to undesignated securities to be offered at an initial offering
price which will not be more than $200,000,000. The filing fee of
$68,966 was paid by the Company by wire transfer.
In accordance with Rule 901(d) of Regulation S-T, a
paper format copy of the Registration Statement will be filed
within six business days.
If you have any questions or comments regarding the
Registration Statement, please call David W. Bernstein at (212)
878-8432 or Carol A. Mateer at (212) 878-8469.
Very truly yours,
CAROL A. MATEER
<PAGE>
As filed with the Securities and Exchange Commission
on April 6, 1994
REGISTRATION NO. 33-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
LENNAR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 59-1281887
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
700 NORTHWEST 107TH AVENUE
MIAMI, FLORIDA 33172
(305) 559-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------------
LEONARD MILLER
PRESIDENT
LENNAR CORPORATION
700 NORTHWEST 107TH AVENUE
MIAMI, FLORIDA 33172
(305) 559-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-------------------
COPIES TO:
DAVID W. BERNSTEIN
ROGERS & WELLS
200 PARK AVENUE
NEW YORK, NEW YORK 10166
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this
Registration Statement.
-------------------
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box: [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
-------------------
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CALCULATION OF REGISTRATION FEE
========================================================================
Title of Each Class|Amount to be|Proposed |Proposed Maximum| Amount of
of Securities to be| Registered | Maximum | Aggregate |Registration
Registered | |Offering | Offering Price | Fee
| |Price Per| |
| | Unit | |
- -------------------+------------+---------+----------------+------------
Common Stock, | (3) | (3) | $200,000,000(2)| $68,966
Preferred Stock, | | | |
Debt Securities and| | | |
Warrants(1) . . . .| | | |
========================================================================
(1) Includes shares of Common Stock which may be issued upon
conversion of Preferred Stock or Debt Securities, or
exercise of Warrants, which are being registered.
(2) Estimated solely for the purpose of calculating the
registration fee.
(3) Not applicable, as provided in General Instruction D to Form
S-3.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION
STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS
EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
=================================================================
2
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
THESE SECURITIES MAY NOT BE SOLD NOR ANY OFFERS TO BUY MAY BE
ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION AND OFFER TO BUY NOR SHALL THERE BE ANY SALE
OF THESE SECURITIES IN ANY STATE IN WHICH HAS AN OFFER,
SOLICITATION OF SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 6, 1994
[ LENNAR CORPORATION ]
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
AND
WARRANTS
-------------------
Lennar Corporation (the "Company") may from time to
time offer its Common Stock, Preferred Stock (which may be issued
in one or more series), Debt Securities (which may be issued in
one or more series) or Warrants entitling the holders to purchase
Common Stock, Preferred Stock or Debt Securities (together
"Securities") at an aggregate initial offering price which will
not exceed $200 million. Securities may be offered from time to
time in amounts, at prices and on terms which will be determined
at the time of sale. Offerings may be of particular Securities
or of units consisting of two or more types of Securities. The
Company may sell Securities to or through underwriters, through
agents or directly to purchasers.
The terms of particular Securities offered by the Company
will be described in a Prospectus Supplement which will accompany
this Prospectus. A Prospectus Supplement relating to a series of
Preferred Stock will describe, to the extent applicable, its
title, maximum number of shares, liquidation preference per
share, dividend rights (which may be fixed or participating and
may be cumulative or non-cumulative), voting rights, conversion
rights, redemption provisions and sinking fund or purchase fund
requirements, as well as any other material terms. A Prospectus
Supplement relating to a series of Debt Securities will describe,
to the extent applicable, its title, aggregate principal amount,
maturity, interest rate (which may be fixed or variable),
currency of payment, interest payment dates, conversion rights,
redemption provisions and sinking fund or purchase fund
requirements, as well as any other material terms. A Prospectus
Supplement relating to an issue of Warrants will describe the
Securities which can be purchased by exercise of the Warrants,
the exercise price of the Warrants (which may be wholly or partly
consideration other than cash) and the period during which the
Warrants can be exercised, as well as any other material terms.
Each Prospectus Supplement will also contain the names of
the underwriters or agents, if any, through which the Securities
to which it relates will be sold, the initial public offering
price, information about securities exchanges or automated
quotation systems on which the Securities will be listed or
traded and any other material information about the offering and
sale of the Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION OF THE
CONTRARY IS A CRIMINAL OFFENSE.
-------------------
The date of this Prospectus is April 6, 1994
3
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<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS
PROSPECTUS. IF GIVEN OR MADE, THAT INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR BY ANY AGENT, UNDERWRITER OR DEALER. THIS PROSPECTUS DOES
NOT, AND NO PROSPECTUS SUPPLEMENT WILL, CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, BY ANY PERSON IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL FOR THAT PERSON TO MAKE SUCH
AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE OF
SECURITIES WILL, UNDER ANY CIRCUMSTANCES, IMPLY THAT THE
INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS
CORRECT AT ANY TIME AFTER ITS DATE.
-----------------
TABLE OF CONTENTS
Page
----
Available Information 2
Incorporation of Certain Documents by Reference 2
The Company 3
Selected Financial Data 4
Selected Operating Data 5
Description of Debt Securities 6
Description of Warrants 7
Description of Capital Stock 8
Legal Matters 9
Experts 9
AVAILABLE INFORMATION
Lennar Corporation ("Lennar" or the "Company") is subject to
the informational requirements of the Securities Exchange Act of
1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the
"Commission"). All reports and other information filed by the
Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and the following
Regional Offices of the Commission: 7 World Trade Center, New
York, New York 10048 and 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The Common
Stock of the Company is listed on the New York Stock Exchange, 20
Broad Street, New York, New York 10005 and reports and other
information concerning the Company can also be inspected at the
offices of that Exchange.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year
ended November 30, 1993 filed by the Company with the Commission
(File No. 1-6643), is incorporated by reference in this
Prospectus.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date of this Prospectus and prior to the termination of the
offering made by this Prospectus will be deemed to be
incorporated by reference in this Prospectus and to be a part of
this Prospectus from the dates they are filed. Any statement
contained in this Prospectus or in a document incorporated by
reference in this Prospectus will be deemed to be modified or
superseded for purposes of this Prospectus to the extent a
statement in any subsequently filed document which is
incorporated by reference in this Prospectus modifies or
supersedes the earlier statement.
The Company will provide without charge to each person to whom
this Prospectus is delivered, upon written or oral request, a
copy of the documents incorporated by reference in this
Prospectus, other than exhibits to those documents which are not
specifically incorporated by reference. Requests should be
directed to: Lennar Corporation, 700 Northwest 107th Avenue,
Miami, Florida 33172, Attention: Director of Shareholder
Relations (Telephone: (305) 559-4000).
4
<PAGE>
<PAGE>
THE COMPANY
The Company is a full service real estate company. It
is primarily engaged in homebuilding, in the ownership and
management of commercial and residential income-producing
properties and other real estate related assets (including both
properties built and owned by the Company and properties and
mortgages acquired by the Company or by partnerships in which the
Company is a participant) and in real estate related financial
services. The Company believes its investment management and
financial services businesses provide a balance to the cyclical
nature of the homebuilding business.
The Company and its predecessor have built homes since
1954. The Company believes that, since its acquisition of
Development Corporation of America in 1986, it has each year
delivered more homes in Florida than any other homebuilder. The
Company has been building homes in Arizona since 1972, where it
currently is one of the leading homebuilders. In 1991, the
Company began building homes in the Dallas/Ft. Worth area of
Texas and in 1993 it expanded its Texas activities into the
Houston area. The Company has constructed and sold over 100,000
homes to date.
The Company is involved in all phases of planning and
building its residential communities, including land acquisition,
site planning, preparation of land, improvement of undeveloped
and partially developed acreage and design, construction and
marketing of homes. The Company subcontracts virtually all
segments of development and construction to others. The Company
sells single-family attached and detached homes and condominiums
in buildings generally one to five stories in height. Homes sold
by the Company are primarily in the moderate price range for the
areas in which they are located. They are targeted primarily at
first time homebuyers, first time move-up homebuyers and, in some
communities, retirees.
The Company has been engaged since the early 1970's in
developing and managing commercial and residential income-
producing properties. It has also, on a number of occasions,
developed properties under arrangements with financial
institutions which had acquired the properties through
foreclosures or similar means. At November 30, 1993, it owned
and was managing more than 2,800 rental apartment units and
approximately 1,400,000 square feet of low rise office buildings,
warehouses and neighborhood retail centers, as well as a 297 room
hotel, a mobile home park and golf and other recreational
facilities in various communities.
In 1992, the Company began acquiring, primarily through
partnerships in which it is a participant, pools of real estate
assets which it believes can be liquidated at a profit and which
will generate rental, interest and other income during the
several year liquidation process. The Company manages the
portfolios of real estate assets for the partnerships in which it
participates. The management agreements typically provide for
reimbursement to the Company of costs of management and for fees
based on the cash flow performance of the partnerships.
The Company's financial services subsidiaries originate
mortgage loans, service mortgage loans which they and other
lenders originate, purchase and re-sell mortgage loan pools
(often retaining the servicing rights), arrange title insurance
and provide closing services for homebuyers. Mortgage loans
originated by the Company include conventional, FHA-insured and
VA-guaranteed mortgage loans. The Company entered the mortgage
banking business in 1981, primarily to provide financing to
buyers of its homes. However, loans to buyers of the Company's
homes currently represent only a small portion of the Company's
loan originations. The Company sells the loans it originates in
the secondary mortgage market, generally on a non-recourse
basis, but usually retains the servicing rights.
RECENT EVENT
In April 1994, the Company seleted Deloitte & Touche to audit
the Company's financial statements.
5
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SELECTED FINANCIAL DATA
The following financial data, except the ratios of earnings
to fixed charges, at November 30, 1993 and 1992, and for the
fiscal years in the three-year period ended November 30, 1993,
are derived from, and are qualified by reference to, the
consolidated financial statements included in the Company's
Annual Report on Form 10-K for the year ended November 30, 1993.
<TABLE>
<S>
FISCAL YEARS ENDED NOVEMBER 30,
------------------------------------------------------------
1993 1992 1991 1990 1989
-------- ---------- ---------- ---------- ----------
<C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
RESULTS OF OPERATIONS:
Revenues
Sales of homes . . . . . . . . . . . . . . $513,503 $300,789 $219,075 $260,503 $349,257
Other real estate . . . . . . . . . . . . 79,846 50,752 42,910 39,587 44,652
-------- ------- ------- ------- -------
Total real estate . . . . . . . . . . . 593,349 351,541 261,985 300,090 393,909
Financial services . . . . . . . . . . . . 59,204 56,723 37,688 21,455 13,758
Limited-purpose finance subsidiaries . . . 14,355 21,164 26,070 29,325 32,649
------- ------- ------- ------- -------
Total revenues . . . . . . . . . . . . . . 666,908 429,428 325,743 350,870 440,316
------- ------- ------- ------- -------
General and administrative expenses . . . . 28,066 20,426 17,318 20,508 22,151
Unusual item - hurricane damage . . . . . . - 7,600 - - -
-------- ------- ------- ------- -------
Earnings (loss) before income taxes:
Real estate . . . . . . . . . . . . . . . 69,190 31,497 19,455 16,188 39,081
Financial services . . . . . . . . . . . . 12,860 14,017 13,219 4,816 3,009
Limited-purpose finance subsidiaries . . . 4 (151) 369 9 474
------- ------- ------- ------- -------
Total earnings before income taxes . . . . 82,054 45,363 33,043 21,013 42,564
------- ------- ------- ------- -------
Net earnings . . . . . . . . . . . . . . . $ 52,511 $ 29,146 $ 21,148 $ 13,658 $ 28,093
======= ======= ======== ======== ========
Net earnings per share (1) . . . . . . . . $ 1.51 $ 0.95 $ 0.70 $ 0.45 $ 0.93
======= ======= ======== ======== ========
Weighted average number of shares
outstanding
(in thousands) (1) . . . . . . . . . . . . 34,709 30,743 30,171 30,101 30,066
Ratio of earnings to fixed charges (2) . . 2.9x 1.8x 1.5x 1.1x 1.6x
Ratio of earnings to fixed charges
(excluding limited purpose finance
subsidiaries)(2)(3) 4.3x 2.8x 2.3x 1.3x 2.7x
FINANCIAL POSITION (END OF PERIOD):
Total assets - real estate . . . . . . . . $783,256 $558,319 $464,822 $468,768 $497,860
- financial services . . . . . . . . 284,391 238,731 159,815 99,831 77,083
- limited purpose finance subsidiaries 127,843 183,211 237,636 266,613 293,225
--------- ------- ------- ------- -------
Consolidated . . . . . . . . . . 1,195,490 980,261 862,273 835,212 868,168
--------- ------- ------- ------- -------
Total debt - real estate . . . . . . . . . 242,193 177,652 129,880 133,873 155,393
- financial services . . . . . . . . 167,561 144,401 70,137 26,958 18,930
- limited purpose finance subsidiaries 121,361 174,152 226,133 253,997 279,716
--------- ------- ------- ------- -------
Consolidated . . . . . . . . . . 531,115 496,205 426,150 414,828 454,039
--------- ------- ------- ------- -------
Ratio of real estate debt to total equity . 51.8% 55.6% 44.6% 49.6% 60.0%
Stockholders' equity . . . . . . . . . . . 467,473 319,330 291,237 269,705 259,079
Stockholders' equity per share(1) . . . . . $ 13.09 $ 10.49 $ 9.61 $ 9.02 $ 8.62
</TABLE>
- ---------------
(1) All per share amounts and shares outstanding have been
restated to reflect a two-for-one stock split
effective February 25, 1992 and a three-for-two stock split
effective April 5, 1994.
(2) For the purpose of calculating the ratio of earnings to
fixed charges, "earnings" consist of income before income
taxes plus "fixed charges." "Fixed charges" consist of
interest on all indebtedness (neither the Company nor its
subsidiaries has any material original issue discount or
capitalized lease obligations).
(3) For the purpose of calculating the ratio of earnings to
fixed charges (excluding limited purpose finance
subsidiaries), "fixed charges" do not include interest on
indebtedness of limited purpose finance subsidiaries (that
interest being funded by payments on mortgage loans, which
are the sole assets of the limited purpose finance
subsidiaries).
6
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<TABLE>
<S> <C> <C> <C> <C> <C>
SELECTED OPERATING DATA
FISCAL YEARS ENDED NOVEMBER 30,
----------------------------------------------
1993 1992 1991 1990 1989
-----------------------------------------------------------
(DOLLARS IN THOUSANDS)
Number of homes delivered . . . . . . . . . 4,634 3,039 2,480 3,011 4,259
Backlog of home sales contracts - number . 2,105 1,788 1,039 815 1,423
Backlog of home sales contracts - dollar
value . . . . . . . . . . . . . . . . . . . $264,000 $191,000 $106,000 $80,000 $134,000
Number of loans in servicing portfolio . . 47,000 52,100 40,100 30,900 16,700
Unpaid principal balance of servicing
portfolio . . . . . . . . . . . . . . . . . $3,400,000 $3,800,000 $2,800,000 $2,200,000 $1,100,000
</TABLE>
7
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the
"Indenture") dated as of April 15, 1994 between the Company and
The First National Bank of Chicago, as Trustee (the "Trustee").
The following statements are subject to the detailed provisions
of the Indenture and are qualified in their entirety by reference
to the Indenture, a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus is a part and is
also available for inspection at the office of the Trustee. All
references to "Section," "Article" or "Paragraph" in this section
refer to the applicable Section or Article of the Indenture or
the applicable Paragraph in the form of Debenture included in the
Indenture, as the case may be.
GENERAL
The Debt Securities will be unsecured obligations of the
Company. The Indenture does not limit the principal amount of
Debt Securities that may be issued. However, the Debt Securities
offered by this Prospectus will be limited to Debt Securities
which, together with the other Securities offered by this
Prospectus, will have an aggregate initial offering price of not
more than $200,000,000. The Debt Securities may be issued in one
or more series. Specific terms of each series of Debt Securities
will be contained in a supplemental indenture relating to that
series. There will be Prospectus Supplements relating to
particular series of Debt Securities. Each Prospectus Supplement
will describe, as to the Debt Securities to which it relates:
(i) the title of the Debt Securities; (ii) any limit upon the
aggregate principal amount of a series of Debt Securities which
may be issued; (iii) the date or dates on which principal of the
Debt Securities will be payable and the amount of principal which
will be payable; (iv) the rate or rates (which may be fixed or
variable) at which the Debt Securities will bear interest, if
any, as well as the dates from which interest will accrue, the
dates on which interest will be payable and the record date for
the interest payable on any payment date; (v) the currency or
currencies in which principal, premium, if any, and interest, if
any, will be paid; (vi) the place or places where principal,
premium, if any, and interest, if any, on the Debt Securities
will be payable and where Debt Securities which are in registered
form can be presented for registration of transfer or exchange;
(vii) any provisions regarding the right of the Company to redeem
Debt Securities or of holders to require the Company to redeem
Debt Securities; (viii) the right, if any, of holders of the Debt
Securities to convert them into stock or other securities of the
Company, including any provisions intended to prevent dilution of
the conversion rights or otherwise; (ix) any provisions by which
the Company will be required or permitted to make payments to a
sinking fund which will be used to redeem Debt Securities or a
purchase fund which will be used to purchase Debt Securities; (x)
the percentage of the principal amount of the Debt Securities
which is payable if maturity of the Debt Securities is
accelerated because of a default; and (xi) any other material
terms of the Debt Securities.
The Indenture does not contain any restrictions on the
payment of dividends or the repurchase of securities of the
Company or any financial covenants. However, Supplemental
Indentures relating to particular series of Debt Securities may
contain provisions of that type.
FORM OF DEBT SECURITIES
Debt Securities may be certificated or uncertificated and
may be issued in registered form with or without coupons or in
bearer form with coupons, if applicable.
Debt Securities of a series may be evidenced by one or more
global certificates, which will be in denominations equal to all
or a portion of the aggregate principal amount of the Debt
Securities of that series. The global certificates may be
deposited with depositaries, and may be subject to restrictions
upon transfer or upon exchange for Debt Securities in
individually certificated form.
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EVENTS OF DEFAULT AND REMEDIES
An Event of Default with respect to the Debt Securities of
any series ("Series Debt") is defined in the Indenture as being
default in payment of the principal of or premium, if any, on any
of the Series Debt; default for 30 days (or another period
specified in a supplemental indenture relating to a particular
series of Debt Securities, which may be no period) in payment of
any installment of interest on the Series Debt; default by the
Company for 45 days after notice in the observance or performance
of any other covenants in the Indenture and certain events
involving bankruptcy, insolvency or reorganization of the Company
(Section 6.01). The Indenture provides that the Trustee may
withhold notice to the holders of Series Debt of any default
(except a default in payment of principal, premium, if any, or
interest, if any, with respect to the Series Debt) if the Trustee
considers it in the interest of the holders of the Series Debt to
do so (Section 7.05).
The Indenture provides that if any Event of Default has
occurred and is continuing, the Trustee or the holders of not
less than 25% in principal amount of the Series Debt then
outstanding may declare the principal of all the Series Debt to
be due and payable immediately. However, if the Company cures
all defaults (except the failure to pay principal, premium or
interest which became due solely because of the acceleration) and
certain other conditions are met, that declaration may be
annulled and past defaults may be waived by the holders of a
majority in principal amount of the Series Debt then outstanding.
(Section 6.02).
The holders of a majority in principal amount of the Series
Debt then outstanding will have the right to direct the time,
method and place of conducting any proceedings for any remedy
available to the Trustee, subject to certain limitations
specified in the Indenture (Section 6.05).
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and
the Trustee, (a) with the consent of the holders of not less than
a majority in principal amount of the Debt Securities at the time
outstanding, to modify the Indenture or any supplemental
indenture or the rights of the holders of the Debt Securities
generally, and (b) with the consent of the holders of not less
than a majority in principal amount of any Series Debt, to modify
any supplemental indenture relating solely to that Series Debt or
the rights of the holders of that Series Debt, except that no
modification may (i) extend the fixed maturity of any Debt
Securities, reduce the rate or extend the time for payment of
interest on any Debt Securities, reduce the principal amount of
any Debt Securities or premium, if any, on it, impair or affect
the right of a holder to institute suit for the payment of
principal, premium, if any, or interest, if any, change the
currency in which any Debt Securities are payable or impair the
right, if any, to convert any Debt Securities into Common Stock
or other securities of the Company, without the consent of holder
of each Debt Securities who will be affected, or (ii) reduce the
percentage of Debt Securities or Series Debt required to consent
to an amendment, supplement or waiver, without the consent of the
holders of all the then outstanding Debt Securities or of the
Series Debt which will be affected. (Section 9.02)
CONCERNING THE TRUSTEE
The First National Bank of Chicago, the Trustee under the
Indenture, provides, and may continue to provide, banking
services to the Company in the ordinary course of its business.
DESCRIPTION OF WARRANTS
Each issue of Warrants will be the subject of an agreement
(a"Warrant Agreement") which will contain the terms of the
Warrants. There will be a Prospectus Supplement with regard to
each issue of Warrants. Each Prospectus Supplement will
describe, as to the Warrants to which it relates: (i) the
securities which may be purchased by exercising the Warrants
(which may be Common Stock, Preferred Stock, Debt Securities or
other Warrants, or units consisting of two or more of those types
of securities); (ii) the exercise price of the Warrants (which
9
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<PAGE>
may be wholly or partly payable in cash or wholly or partly
payable with other types of consideration); (iii) the period
during which the Warrants may be exercised; (iv) any provision
adjusting the securities which may be purchased on exercise of
the Warrants and the exercise price of the Warrants in order to
prevent dilution or otherwise; (iv) the place or places where
Warrants can be presented for exercise or for registration of
transfer or exchange; and (v) any other material terms of the
Warrants.
DESCRIPTION OF CAPITAL STOCK
Lennar's authorized capital stock is 100,000,000 shares of
Common Stock, $.10 par value, 30,000,000 shares of Class B Common
Stock, $.10 par value, and 500,000 shares of Preferred Stock, $10
par value. At April 5, 1994, 25,771,116 shares of Common Stock
and 9,986,631 shares of Class B Common Stock were outstanding.
PREFERRED STOCK
The Preferred Stock may be issued in series with any rights
and preferences which may be authorized by Lennar's board of
directors. However, the Preferred Stock offered by this
Prospectus will be limited to Preferred Stock which, together
with the other Securities offered by this Prospectus, will have
an aggregate initial offering price of not more than
$200,000,000. There will be Prospectus Supplements relating to
particular series of Preferred Stock. Each Prospectus Supplement
will describe, as to the Preferred Stock to which it relates:
(i) the title of the Preferred Stock; (ii) any limit upon the
number of shares of the series of Preferred Stock which may be
issued; (iii) the preference, if any, to which holders of the
series of Preferred Stock will be entitled upon liquidation of
the Company; (iv) the date or dates on which the Company will be
required or permitted to redeem the Preferred Stock; (v) the
terms, if any, on which the Company or holders of the Preferred
Stock will have the option to cause the Preferred Stock to be
redeemed; (vi) the voting rights of the holders of the Preferred
Stock; (vii) the dividends, if any, which will be payable with
regard to the series of Preferred Stock (which may be fixed
dividends or particularly dividends and may be cumulative or non-
cumulative); (viii) the right, if any, of holders of the
Preferred Stock to convert it into another class of stock or
securities of the Company, including provisions intended to
prevent dilution of those conversion rights; (ix) any provisions
by which the Company will be required or permitted to make
payments to a sinking fund which will be used to redeem Preferred
Stock or a purchase fund which will be used to purchase Preferred
Stock; and (x) any other material terms of the Preferred Stock.
COMMON STOCK
All the outstanding shares of Common Stock are fully paid
and nonassessable and entitled to participate equally and ratably
in dividends and in distributions available for the Common Stock
on liquidation. Each share is entitled to one vote for the
election of directors and upon all other matters on which the
common stockholders vote. Holders of Common Stock do not have
preemptive rights and are not entitled to cumulative votes in the
election of Directors.
The transfer agent and registrar for the Common Stock is
First Union National Bank, Charlotte, North Carolina.
CLASS B COMMON STOCK
The Class B Common Stock is identical in every respect with
the Common Stock, except that (a) each share of Class B Common
Stock is entitled to ten votes on each matter submitted to the
vote of the common stockholders, while each share of Common Stock
is entitled to only one vote on each matter submitted to the vote
of the common stockholders, (b) the cash dividends, if any, paid
with regard to the Class B Common Stock in a year cannot be more
than 90% of the cash dividends, if any, paid with regard to the
Common Stock in that year, (c) Class B Common Stock cannot be
transferred, except to a limited group of Permitted Transferees
10
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<PAGE>
(primarily close relatives of the Class B stockholder,
fiduciaries for the Class B stockholder or for close relatives,
and entities of which the Class B stockholder or close relatives
are majority owners), (d) Class B Common Stock may at any time be
converted into Common Stock, but Common Stock may not be
converted into Class B Common Stock, (e) amendments to provisions
of the Company's Certificate of Incorporation relating to the
Common Stock or the Class B Common Stock require the approval of
a majority of the shares of Common Stock which are voted with
regard to them (as well as a majority in voting power of all the
outstanding Common Stock and Class B Common Stock combined), and
(f) under Delaware law, certain matters affecting the rights of
holders of Class B Common Stock may require approval of the
holders of the Class B Common Stock voting as a separate class.
Leonard Miller, the Chairman of the Board of the Company,
currently owns 9,947,130 shares of Class B Common Stock, which is
99.6% of the outstanding Class B Common Stock and 27.8% of the
outstanding common stock of both classes. Mr. Miller's Class B
Common Stock gives him 79.2% of the total votes which can be cast
by the holders of both classes of Common Stock. Even if Mr.
Miller converted 6,371,000 shares of Class B Common Stock into
Common Stock and sold that Common Stock, thereby reducing his
holdings to 10% of the total common stock of both classes, Mr.
Miller would be entitled to cast more than 50% of the votes. Mr.
Miller has no current intention to convert any Class B Common
Stock into Common Stock, or to sell any Common Stock, although,
except as described under "Underwriting," he would be free to do
so at any time.
The existence of Class B Common Stock, which has
substantially greater voting rights than the Common Stock,
probably would have the effect of discouraging non-negotiated
tender offers and other types of non-negotiated takeovers, if any
were contemplated. Mr. Miller's ownership of Class B Common
Stock would make it impossible for anyone to acquire shares which
have voting control of the Company so long as Mr. Miller's Class
B Common Stock represents at least 9.09% of the combined common
stock of both classes and the total outstanding Class B Common
Stock is at least 10% of the combined common stock of both
classes (if at any time the outstanding shares of Class B Common
Stock are less than 10% of the outstanding shares of both classes
of common stock taken together, the Class B Common Stock will
automatically be converted into Common Stock). However, because
Mr. Miller owns 99.6% of the outstanding Class B Common Stock, at
the current level of outstanding Common Stock, in order for the
Class B Common Stock to be at least 10% of the outstanding shares
of both classes of common stock, Mr. Miller's Class B Common
Stock would be at least 9.89% of the common stock of both
classes.
LEGAL MATTERS
The validity of the Securities offered by this Prospectus
will be passed upon for the Company by Rogers & Wells, 200 Park
Avenue, New York, New York 10166. If the validity of any
Securities is also passed upon by counsel for the underwriters of
an offering of those securities, that counsel will be named in
the Prospectus Supplement relating to that offering.
EXPERTS
The consolidated financial statements and schedules of
Lennar Corporation and subsidiaries as of November 30, 1993 and
1992 and for each of the years in the three-year period ended
November 30, 1993 incorporated by reference herein and elsewhere
in the Registration Statement, have been incorporated by
reference herein and in the Registration Statement in reliance
upon the report of KPMG Peat Marwick, independent certified
public accountants, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing.
11
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses
in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts
and commissions:
Registration fee -- Securities and Exchange Commission $68,966
Accounting fees and expenses *
Legal fees and expenses *
Trustees' fees and expenses *
Rating agency fees *
Cost of printing and engraving *
Miscellaneous *
-------
Total *
=======
- ----------------
*Cannot be estimated until particular offerings are proposed.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the General Corporation
Law of Delaware, the Company's Certificate of Incorporation
provides that an officer, director, employee or agent of the
Company is entitled to be indemnified for the expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him by reason of any action, suit or
proceeding brought against him by virtue of his acting as such
officer, director, employee or agent, provided he acted in good
faith or in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful, except that in any action or
suit by or in the right of the Company such person shall be
indemnified only for the expenses actually and reasonably
incurred by him and, if such person shall have been adjudged to
be liable for negligence or misconduct, he shall not be
indemnified unless and only to the extent that a court of
appropriate jurisdiction shall determine that such
indemnification is fair and reasonable.
ITEM 16. EXHIBITS
4. Form of Indenture
5. Opinion of Counsel
12. Statement of computation of ratios of
earnings to fixed charges
24. Consents
(i) Rogers & Wells (counsel)--included in
Exhibit 5
(ii) KPMG Peat Marwick (accountants)
26. Statement of eligibility of trustee on Form T-1
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for
purposes of determining liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of
12
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<PAGE>
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described in Item 15, or otherwise, the registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
13
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miami and State of Florida on April 5,
1994.
LENNAR CORPORATION
By: LEONARD MILLER
------------------------------
Leonard Miller
Chairman of the Board
and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Leonard Miller,
Allan J. Pekor and Robert B. Cole, and each of them, as his true
and lawful attorney-in-fact and agent, with sole power of
substitution, to sign for him and in his name, in any and all
capacities, all amendments (including post-effective amendments)
to the Registration Statement to which this power of attorney is
attached, and to file all such amendments and all exhibits to
them and other documents to be filed in connection with them,
with the Securities and Exchange Commission.
-----------------
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
NAME TITLE DATE
---- ----- ----
Chairman of the Board, April 5, 1994
President, Director (Principal
Executive Officer)
LEONARD MILLER
-------------------
Leonard Miller
Financial Vice President
(Principal Financial Officer) April 5, 1994
ALLAN J. PEKOR
-------------------
Allan J. Pekor
Controller (Principal
Accounting Officer) April 5, 1994
JAMES T. TIMMONS
-------------------
James T. Timmons
Director April 5, 1994
CHARLES I. BABCOCK
-------------------
Charles I. Babcock
14
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<PAGE>
NAME TITLE DATE
---- ----- ----
Director April 5, 1994
IRVING BOLOTIN
-------------------
Irving Bolotin
Director April 5, 1994
ROBERT B. COLE
-------------------
Robert B. Cole
Director April 5, 1994
RICHARD W. McEWEN
-------------------
Richard W. McEwen
Director April 5, 1994
JAMES W. McLAMORE
-------------------
James W. McLamore
Director April 5, 1994
STUART A. MILLER
-------------------
Stuart A. Miller
Director April 5, 1994
ARNOLD P. ROSEN
-------------------
Arnold P. Rosen
Director April 5, 1994
STEVEN J. SAIONTZ
-------------------
Steven J. Saiontz
15
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EXHIBIT 4
LENNAR CORPORATION,
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
INDENTURE
DATED AS OF APRIL 5, 1994
<PAGE>
<PAGE>
CROSS-REFERENCE TABLE
Trust Indenture
Act Section Indenture
_______________ _________
310(a)(1) . . . . . . . . . . . . . . . . . . .7.10
(a)(2) . . . . . . . . . . . . . . . . . . .7.10
(a)(3) . . . . . . . . . . . . . . . . . . .N.A.
(a)(4) . . . . . . . . . . . . . . . . . . .N.A.
(a)(5) . . . . . . . . . . . . . . . . . . .7.10
(b). . . . . . . . . . . . . . . . . . . . .7.08; 7.10; 12.03
(c). . . . . . . . . . . . . . . . . . . . .N.A.
311(a). . . . . . . . . . . . . . . . . . . . .7.11
(b). . . . . . . . . . . . . . . . . . . . .7.11
(c). . . . . . . . . . . . . . . . . . . . .N.A.
312(a). . . . . . . . . . . . . . . . . . . . .2.07
(b). . . . . . . . . . . . . . . . . . . . .12.04
(c). . . . . . . . . . . . . . . . . . . . .12.04
313(a). . . . . . . . . . . . . . . . . . . . .7.06
(b). . . . . . . . . . . . . . . . . . . . .7.06
(c). . . . . . . . . . . . . . . . . . . . .12.03
(d). . . . . . . . . . . . . . . . . . . . .7.06
314(a). . . . . . . . . . . . . . . . . . . . .4.02; 12.05
(b). . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1) . . . . . . . . . . . . . . . . . . .12.05
(c)(2) . . . . . . . . . . . . . . . . . . .12.05
(c)(3) . . . . . . . . . . . . . . . . . . .N.A.
(d). . . . . . . . . . . . . . . . . . . . .N.A.
(e). . . . . . . . . . . . . . . . . . . . .12.05
(f). . . . . . . . . . . . . . . . . . . . .12.05
315(a). . . . . . . . . . . . . . . . . . . . .7.01(b)
(b). . . . . . . . . . . . . . . . . . . . .7.05; 12.03
(c). . . . . . . . . . . . . . . . . . . . .7.01(a)
(d). . . . . . . . . . . . . . . . . . . . .7.01(c)
(e). . . . . . . . . . . . . . . . . . . . .6.13
316(a) (last sentence). . . . . . . . . . . . .12.06
(a)(1)(A). . . . . . . . . . . . . . . . . .6.05
(a)(1)(B). . . . . . . . . . . . . . . . . .6.04
(a)(2) . . . . . . . . . . . . . . . . . . .N.A.
(b). . . . . . . . . . . . . . . . . . . . .6.08
(c). . . . . . . . . . . . . . . . . . . . .12.03
317(a)(1) . . . . . . . . . . . . . . . . . . .6.09
(a)(2) . . . . . . . . . . . . . . . . . . .6.10
(b). . . . . . . . . . . . . . . . . . . . .2.06
318(a). . . . . . . . . . . . . . . . . . . . .12.02
_______
N.A. means Not Applicable
<PAGE>
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . 3
SECTION 1.03. Rules of Construction . . . . . . . . . . 4
ARTICLE TWO THE SECURITIES . . . . . . . . . . . . . . . . . . 4
SECTION 2.01. Form and Dating . . . . . . . . . . . . . 4
SECTION 2.02. Amount Unlimited; Issuable in Series. . . 4
SECTION 2.03. Denominations . . . . . . . . . . . . . . 5
SECTION 2.04. Execution and Authentication. . . . . . . 5
SECTION 2.05. Registrar and Paying Agent. . . . . . . . 6
SECTION 2.06. Paying Agent to Hold Money in Trust . . . 6
SECTION 2.07. Securityholder Lists. . . . . . . . . . . 7
SECTION 2.08. Transfer and Exchange . . . . . . . . . . 7
SECTION 2.09. Replacement Securities. . . . . . . . . . 7
SECTION 2.10. Outstanding Securities. . . . . . . . . . 8
SECTION 2.11. Temporary Securities. . . . . . . . . . . 8
SECTION 2.12. Cancellation. . . . . . . . . . . . . . . 8
SECTION 2.13. Defaulted Interest. . . . . . . . . . . . 9
ARTICLE THREE REDEMPTION . . . . . . . . . . . . . . . . . . . 9
SECTION 3.01. Company's Option to Redeem. . . . . . . . 9
SECTION 3.02. Notices to Trustee. . . . . . . . . . . . 9
SECTION 3.03. Selection of Securities to be Redeemed. . 10
SECTION 3.04. Notice of Redemption at the Company's
Option . . . . . . . . . . . . . . . . . 10
SECTION 3.05. Effect of Notice of Redemption. . . . . . 11
SECTION 3.06. Deposit of Redemption Price . . . . . . . 11
SECTION 3.07. Holder's Right to Require Redemption. . . 11
SECTION 3.08. Procedure for Requiring Redemption. . . . 11
SECTION 3.09. Securities Redeemed in Part . . . . . . . 12
ARTICLE FOUR COVENANTS . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.01. Payment of Securities . . . . . . . . . . 12
SECTION 4.02. Reporting . . . . . . . . . . . . . . . . 12
SECTION 4.03. Corporate Existence . . . . . . . . . . . 13
SECTION 4.04. Compliance Certificate. . . . . . . . . . 13
SECTION 4.05. Further Instruments and Acts. . . . . . . 13
ARTICLE FIVE SUCCESSOR CORPORATION . . . . . . . . . . . . . . 13
SECTION 5.01. Company May Consolidate, etc., Only on
Certain Terms. . . . . . . . . . . . . . 13
SECTION 5.02. Successor Corporation Substituted . . . . 14
ARTICLE SIX DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . 14
SECTION 6.01. Events of Default . . . . . . . . . . . . 14
SECTION 6.02. Acceleration. . . . . . . . . . . . . . . 16
SECTION 6.03. Other Remedies. . . . . . . . . . . . . . 16
i
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SECTION 6.04. Waiver of Existing Defaults . . . . . . . 17
SECTION 6.05. Control by Majority . . . . . . . . . . . 17
SECTION 6.06. Payments of Securities on Default; Suit
Therefor . . . . . . . . . . . . . . . . 17
SECTION 6.07. Limitation on Suits . . . . . . . . . . . 18
SECTION 6.08. Rights of Holders to Receive Payment
and to Demand Conversion . . . . . . . . 18
SECTION 6.09. Collection Suit by Trustee. . . . . . . . 19
SECTION 6.10. Trustee May File Proofs of Claim. . . . . 19
SECTION 6.11. Restoration of Positions. . . . . . . . . 19
SECTION 6.12. Priorities. . . . . . . . . . . . . . . . 19
SECTION 6.13. Undertaking for Costs . . . . . . . . . . 20
SECTION 6.14. Stay, Extension or Usury Laws . . . . . . 20
SECTION 6.15. Liability of Stockholders, Officers,
Directors and Incorporators. . . . . . . 21
ARTICLE SEVEN TRUSTEE. . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . 21
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . 22
SECTION 7.03. Individual Rights of Trustee. . . . . . . 23
SECTION 7.04. Trustee's Disclaimer. . . . . . . . . . . 23
SECTION 7.05. Notice of Defaults. . . . . . . . . . . . 23
SECTION 7.06. Reports by Trustee. . . . . . . . . . . . 23
SECTION 7.07. Compensation and Indemnity. . . . . . . . 24
SECTION 7.08. Replacement of Trustee. . . . . . . . . . 25
SECTION 7.09. Successor Trustee by Merger, etc. . . . . 26
SECTION 7.10. Eligibility; Disqualification . . . . . . 26
SECTION 7.11. Preferential Collection of Claims . . . . 26
ARTICLE EIGHT DISCHARGE OF INDENTURE . . . . . . . . . . . . . 26
SECTION 8.01. Termination of the Company's
Obligations. . . . . . . . . . . . . . . 26
SECTION 8.02. Application of Trust Money. . . . . . . . 27
SECTION 8.03. Repayment to the Company. . . . . . . . . 28
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . 28
SECTION 9.01. Without Consent of Holders. . . . . . . . 28
SECTION 9.02. With Consent of Holders . . . . . . . . . 28
SECTION 9.03. Compliance with Trust Indenture Act . . . 30
SECTION 9.04. Revocation and Effect of Consents . . . . 30
SECTION 9.05. Notation on or Exchange of Securities . . 30
SECTION 9.06. Trustee to Sign Amendments, etc . . . . . 30
ARTICLE TEN CONVERSION OR EXCHANGE OF SECURITIES . . . . . . . 30
SECTION 10.01. Provisions Relating to Conversion or
Exchange of Securities . . . . . . . . . 30
ARTICLE ELEVEN SINKING OR PURCHASE FUNDS . . . . . . . . . . . 31
SECTION 11.01. Provisions Relating to Sinking or
Purchase Funds . . . . . . . . . . . . . 31
ii
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ARTICLE TWELVE MISCELLANEOUS . . . . . . . . . . . . . . . . . 31
SECTION 12.01. Trust Indenture Act Controls. . . . . . . 31
SECTION 12.02 Supplemental Indentures Contract. . . . . 31
SECTION 12.03. Notices . . . . . . . . . . . . . . . . . 32
SECTION 12.04. Communication by Holders with Other
Holders. . . . . . . . . . . . . . . . . 32
SECTION 12.05. Certificate and Opinion as to
Conditions Precedent . . . . . . . . . . 33
SECTION 12.06. When Treasury Securities Disregarded. . . 33
SECTION 12.07. Rules by Trustee, Paying Agent,
Registrar. . . . . . . . . . . . . . . . 34
SECTION 12.08. Legal Holidays. . . . . . . . . . . . . . 34
SECTION 12.09. Governing Law and Submission to
Jurisdiction . . . . . . . . . . . . . . 34
SECTION 12.10. Actions by the Company. . . . . . . . . . 34
SECTION 12.11. No Adverse Interpretation of Other
Agreements . . . . . . . . . . . . . . . 34
SECTION 12.12. Successors. . . . . . . . . . . . . . . . 35
SECTION 12.13. Duplicate Originals . . . . . . . . . . . 35
SECTION 12.14. Table of Contents, Headings, etc. . . . . 35
Exhibit A - Form of Debenture and Trustee's
Authentication. . . . . . . . . . . . . .A-1
iii
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<PAGE>
INDENTURE, dated as of April 5, 1994, between Lennar
Corporation (the "Company"), a Delaware corporation having its
principal office at 700 N.W. 107th Avenue, Miami, Florida 33172,
and The First National Bank of Chicago (the "Trustee"), a national
banking association, organized under the laws of the United States
of America which has its corporate trust office at One First
National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
Each party agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of
the Company's debentures, notes or other evidences of unsecured
indebtedness to be issued in one or more series ("Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Board Resolution" means a resolution by the Board of
Directors or Executive Committee of the Company certified by its
Secretary or an Assistant Secretary as being duly adopted and in
full force and effect.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a Legal Holiday.
"Capital Stock" means common or preferred stock entitled
to share in the equity or profits of a Corporation.
"Common Stock" means the common stock, par value $.10 per
share, of the Company, as that stock may be reconstituted from time
to time, except that "Common Stock" will not include the Company's
Class B Common Stock.
"Company" means the Person named as such in this
Indenture until a successor replaces it and after that means the
successor.
"Corporate Trust Office" means the principal office of
the Trustee at which at any particular time its corporate trust
business is principally administered (which at the date of this
Indenture is at the location set forth in the first paragraph of
this Indenture).
"Corporation" includes corporations, associations,
companies and business trusts.
"Custodian" has the meaning provided in Section 6.01.
"Default" means any event which, upon the giving of
notice or passage of time, or both, would be an Event of Default.
1
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"$" means the lawful currency of the United States.
"Event of Default" has the meaning provided in Section
6.01.
"Fiscal Year" means the period commencing on December 1
of a year and ending on the next November 30 or such other period
(not to exceed 12 months or 53 weeks) as the Company may from time
to time adopt as its fiscal year.
"Holder" or "Securityholder" means a Person in whose name
a Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or
supplemented from time to time and will include the form and terms
of the Securities of each series established as contemplated by
Section 2.01.
"Interest Payment Date" means the date on which an
installment of interest on the Securities is due and payable.
"Legal Holiday" has the meaning provided in
Section 12.08.
"Maturity Date" means the date the principal of
Securities is due and payable.
"Officer" means the Chairman of the Board, any Vice
Chairman of the Board, the President, any Vice President, the
Treasurer, the Secretary, the Controller or any Assistant Secretary
of a Person.
"Officers' Certificate" when used with respect to the
Company means a certificate signed by two Officers. Each such
certificate will comply with Section 314 of the TIA and include the
statements described in Section 12.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. That counsel may be an
employee of or counsel to the Company or the Trustee. Each such
opinion will include the statements described in Section 12.05 if
and to the extent required by that Section.
"Paying Agent" has the meaning provided in Section 2.05.
"Person" means any individual, corporation, partnership,
joint venture, joint-stock company, trust, unincorporated
organization or government or any government agency or political
subdivision.
"Registrar" has the meaning provided in Section 2.05.
"SEC" means the Securities and Exchange Commission.
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"Securities" means the debentures, notes or other
evidences of unsecured indebtedness to be issued in one or more
series by the Company.
"Securities Act of 1933" means the Securities Act of
1933, as amended.
"Securities Exchange Act of 1934" means the Securities
Exchange Act of 1934, as amended.
"State" means any state of the United States or the
District of Columbia.
"Subsidiary" means a corporation of which a majority of
the voting stock is owned by the Company, by a Subsidiary of the
Company or by the Company and one or more Subsidiaries of the
Company.
"Supplemental Indenture" means an indenture between the
Company and the Trustee which supplements this Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended,
as in effect on the date of this Indenture.
"Trustee" means the Person named as such in this
Indenture and, subject to the provisions of Article 7, any
successor to that person.
"Trust Officer" means the Chairman of the Board, the
President or any other officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. In addition, the provisions of Sections 310 to and
including 317 of the TIA that impose duties on any person are
incorporated by reference in, and form a part of, this Indenture.
The following TIA terms mean the following when used in
this Indenture:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture securityholder" means a Holder;
"indenture to be qualified" means this Indenture;
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"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are
defined in the TIA, defined in the TIA by reference to another
statute or defined by SEC rule have the meanings assigned to them.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles in the United States;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the
plural include the singular.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
(a) The Securities of each series will be
substantially in the form established by a Supplemental Indenture
relating to the Securities of that series. The Securities may have
notations, legends or endorsements required by law, stock exchange
rules or usage. The Company will approve the form of the
Securities and any notation, legend or endorsement on them. Each
Security will be dated the date of its authentication.
(b) The Trustee's certificate of authentication
will be substantially in the form of Exhibit A.
SECTION 2.02. Amount Unlimited; Issuable in Series. The aggregate
principal amount of the Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Prior to the issuance of Securities of a series, the Company and
the Trustee will execute a Supplemental Indenture which will set
forth as to the Securities of that series, to the extent
applicable:
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(1) the title of the Securities;
(2) any limit upon the aggregate principal amount of
Securities which may be issued;
(3) the date or dates on which the Securities will
mature and the amounts to be paid upon maturity of the Securities;
(4) the rate or rates (which may be fixed or variable)
at which the Securities will bear interest, if any, the dates from
which interest will accrue, the dates on which interest will be
payable and the record date for the interest payable on any
interest payment date;
(5) the currency or currencies in which principal,
premium, if any, and interest, if any, will be payable;
(6) the place or places where principal of, premium, if
any, and interest, if any, on the Securities will be payable;
(7) any provisions regarding the right of the Company to
redeem Securities or of holders to require the Company to redeem
Securities;
(8) the right, if any, of holders of the Securities to
convert them into stock or other securities of the Company,
including any provisions intended to prevent dilution of those
conversion rights;
(9) any provisions by which the Company will be required
or permitted to make payments to a sinking fund which will be used
to redeem Securities or a purchase fund which will be used to
purchase Securities;
(10) the percentage of the principal amount of the
Securities which is payable if maturity of the Securities is
accelerated because of a default; and
(11) any other terms of the Securities.
SECTION 2.03. Denominations. Unless otherwise provided in the
Supplemental Indenture relating to a series of Securities, the
Securities of each series will be issuable in registered form
without coupons in denominations of $1,000 and multiples of $1,000.
SECTION 2.04. Execution and Authentication. Two Officers will
sign the Securities of each series for the Company by manual or
facsimile signature. The Company's seal will be reproduced on the
Securities. If an Officer whose signature is on a Security no
longer holds office at the time the Trustee authenticates the
Security, the Security will be valid nonetheless.
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A Security will not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Security. The signature will be conclusive
evidence that the Security has been authenticated under this
Indenture.
SECTION 2.05. Registrar and Paying Agent. The Company will
maintain an office or agency where Securities of each series may be
presented for conversion, registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities of each
series may be presented for payment ("Paying Agent"). The
Registrar will keep a register of the Securities of each series and
of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent.
The Company will enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a
party to this Indenture which will incorporate the terms of the
TIA. The agreement will implement the provisions of this Indenture
that relate to that agent. The Company will notify the Trustee of
the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee will act as such.
The Company or any Subsidiary may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Company initially appoints the Trustee to act as
Registrar and Paying Agent in connection with the Securities of
each series, except in instances in which the Supplemental
Indenture relating to a series of Securities appoints a different
Registrar or Paying Agent.
SECTION 2.06. Paying Agent to Hold Money in Trust. Prior to each
due date of the principal of, premium, if any, or interest, if any,
on any Security, the Company will deposit with the Paying Agent a
sum sufficient to pay that principal, premium or interest when due.
The Paying Agent will hold in trust for the benefit of the Holders
of the Securities of a series, and if the Paying Agent is not the
Trustee, in trust for the benefit of the Trustee, all sums held by
the Paying Agent for the payment of principal, premium or interest
on the Securities of that series and, in the case of a Paying Agent
other than the Trustee, the Paying Agent will give the Trustee
notice of any default by the Company in making any such payment.
If the Company or a Subsidiary acts as Paying Agent, it will
segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent will have no further liability for the
money.
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SECTION 2.07. Securityholder Lists. The Trustee will preserve in
as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of the Holders of the
Securities of each series. If the Trustee is not the Registrar,
the Company will furnish to the Trustee in writing at least five
Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing all information in the
possession or control of the Company or its Paying Agent as to the
names and addresses of Holders of the Securities of a series.
SECTION 2.08. Transfer and Exchange. Unless otherwise provided in
the Supplemental Indenture relating to Securities of a series,
Securities which are issued in registered form will be transferred
only upon the surrender of the Securities for registration of
transfer. When a Security is presented to the Registrar or a co-
registrar with a request to register a transfer, the Registrar will
register the transfer as requested if the requirements of Section
8-401(1) of the New York Uniform Commercial Code are met. When
Securities are presented to the Registrar or a co-registrar with a
request to exchange them for an equal principal amount of
Securities of the same series of other denominations, the Registrar
will make the exchange as requested if the same requirements are
met. To permit registration of transfers and exchanges, the
Company will execute and the Trustee will authenticate Securities
at the Registrar's or co-registrar's request. The Company will not
charge a fee for transfers or exchanges.
The Company will not be required to make, and the
Registrar need not register, transfers or exchanges of (i)
Securities selected for redemption (except, in the case of
Securities to be redeemed in part, transfers or exchanges of the
portion of the Securities not to be redeemed) or (ii) any
Securities of a series for a period of 15 days before the first
mailing of a notice of the Securities of that series which are to
be redeemed.
Prior to the due presentation for registration or
transfer of any Security which was issued in registered form, the
Company, the Trustee, the Paying Agent, the Registrar or any co-
registrar may deem and treat the person in whose name the Security
is registered as the absolute owner of the Security for all
purposes, and none of the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar will be affected by notice to the
contrary.
SECTION 2.09. Replacement Securities. If a mutilated Security
which had been issued in registered form is surrendered to the
Registrar or if the Holder presents evidence to the satisfaction of
the Company and the Trustee that a Security which had been issued
in registered form has been lost or destroyed, the Company will
issue and the Trustee will authenticate a replacement Security of
the same series if the requirements of Section 8-405 of the New
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York Uniform Commercial Code are met and the Holder satisfies any
other reasonable requirements of the Trustee. If required by the
Trustee or the Company, the replacement Security will not be issued
until the Holder furnishes an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the
Trustee, the Paying Agent and the Registrar or any co-registrar
from any loss which any of them may suffer if the Security is
replaced. The Company may charge the Holder for its expenses in
replacing a Security.
Every replacement Security will be an obligation of the
Company, even if the replaced Security is subsequently found.
SECTION 2.10. Outstanding Securities. The Securities outstanding
at any time will be all the Securities authenticated by the
Trustee, except those cancelled by it, those delivered to it for
cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because
the Company or its affiliate holds the Security.
If a Security is replaced pursuant to Section 2.09, it
ceases to be outstanding unless the Trustee and the Company receive
proof satisfactory to them that the replaced Security is held by a
bona fide purchaser.
If the Paying Agent (other than the Company or a
Subsidiary) segregates and holds in trust, in accordance with this
Indenture, on a redemption date or Maturity Date money sufficient
to pay all principal, premium, if any, and interest, if any,
payable on that date with respect to the Securities to be redeemed
or maturing, as the case may be, then on that date those Securities
will cease to be outstanding and interest on them will cease to
accrue.
SECTION 2.11. Temporary Securities. Until definitive Securities
of a series are ready for delivery, the Company may prepare and the
Trustee will authenticate temporary Securities of that series.
Temporary Securities will be substantially in the form of
definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without
unreasonable delay, the Company will prepare and the Trustee will
authenticate definitive Securities and deliver them in exchange for
temporary Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver
Securities of a series to the Trustee for cancellation and the
Trustee will reduce accordingly the aggregate amount of the
Securities of that series which are outstanding. The Registrar and
the Paying Agent will forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange,
payment, or conversion. The Trustee and no one else will cancel
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and destroy (subject to the record retention requirements of the
Exchange Act) all Securities surrendered for registration of
transfer, exchange, payment, conversion or cancellation and deliver
certificates of such destruction to the Company unless the Company
directs the Trustee to deliver the cancelled Securities to the
Company. Subject to Section 2.09, the Company may not issue new
Securities of a series to replace Securities of the series it has
redeemed, paid, converted or delivered to the Trustee for
cancellation.
SECTION 2.13. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities of a series, it will pay
defaulted interest (plus interest on such defaulted interest to the
extent lawful) to the persons who are Holders of the Securities of
that series on a subsequent special record date, which date will be
at least five Business Days prior to the payment date. The Company
will fix the special record date and payment date, and, at least 15
days before the special record date, the Company will mail to each
Holder of Securities of that series a notice that states the
special record date, the payment date and the amount of defaulted
interest and any interest on that defaulted interest which is to be
paid. Notwithstanding the foregoing, the Company may pay defaulted
interest in any other lawful manner.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Company's Option to Redeem. The Company will have
the option to redeem Securities of a series only to the extent, if
any, and only on the terms, set forth in the Supplemental Indenture
relating to the Securities of that series. If the Company has the
option to redeem Securities of a series, unless otherwise provided
in the Supplemental Indenture relating to the series, the terms of
the redemption will include those set forth in Sections 3.02
through 3.06.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem
Securities of a series, it will notify the Trustee of the
redemption date and the principal amount and series of Securities
to be redeemed. The Company will give each notice provided for in
this Section at least 45 days before the redemption date. If fewer
than all the Securities of a series are to be redeemed, the record
date for determining which Securities of the series are to be
redeemed will be selected by the Company, which will give notice of
the record date to the Trustee at least 15 days before the record
date.
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SECTION 3.03. Selection of Securities to be Redeemed. If fewer
than all the Securities of a series are to be redeemed at the
Company's option, the Trustee will select the Securities of that
series to be redeemed by lot or, in its sole discretion, pro-rata.
The Trustee will make the selection from outstanding Securities of
that series not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities that
have denominations larger than the minimum denomination in which
Securities of the applicable series may be issued. Securities and
portions of Securities the Trustee selects will be in amounts equal
to the minimum denomination in which Securities of the applicable
series may be issued and multiples of that amount. Provisions of
this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee
will notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.04. Notice of Redemption at the Company's Option. At
least 30 days and not more than 60 days before a date set for
redemption at the Company's option, the Company will mail a notice
of redemption by first-class mail to each Holder of Securities to
be redeemed in whole or in part.
The notice will identify the principal amount and series
of each Security to be redeemed and will state:
(1) the redemption date;
(2) the redemption price plus accrued interest, if
any;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption in whole
or in part must be surrendered to the Paying Agent to collect
the redemption price plus accrued interest, if any;
(5) that, unless the Company defaults in making the
redemption payment, interest on Securities (or portions of
Securities) called for redemption will cease to accrue on the
redemption date and, if applicable, that those Securities (or
the portions of then called for redemption) will cease on the
redemption date (or such other date as is provided in the
Supplemental Indenture relating to the Securities) to be
convertible into, or exchangeable for, other securities or
assets; and
(6) if applicable, the current conversion or
exchange price.
At the Company's request, the Trustee will give the
notice of redemption in the Company's name and at the Company's
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expense. In such event, the Company will provide the Trustee with
the information required by clauses (1) through (3) and (6).
SECTION 3.05. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities, or portions of Securities called
for redemption will become due and payable on the redemption date
and at the redemption price. Upon surrender to the Paying Agent,
those Securities will be paid at the redemption price, plus accrued
and unpaid interest to the redemption date. On and after the date
fixed for redemption (unless the Company defaults in the payment of
the redemption price, together with interest accrued to the
redemption date) interest on the Securities, or portions of them,
which are redeemed will cease to accrue and any right to convert
those Securities into, or exchange them for, other securities or
assets will terminate and those Securities will cease to be
convertible or exchangeable. Failure to give notice or any defect
in the notice to any Holder will not affect the validity of the
notice to any other Holder.
SECTION 3.06. Deposit of Redemption Price. No later than the
Business Day prior to the redemption date specified in a notice of
redemption, the Company will deposit with the Paying Agent (or, if
the Company or a Subsidiary is the Paying Agent, segregate and hold
in trust) money sufficient to redeem on the redemption date all the
Securities called for redemption on that redemption date at the
appropriate redemption price, together with accrued interest to the
redemption date, other than Securities or portions of Securities
called for redemption which have been delivered by the Company to
the Trustee for cancellation or Securities which have been
surrendered for conversion or exchange. If any Securities called
for redemption are converted or exchanged, any money deposited with
the Paying Agent for redemption of those Securities will be paid to
the Company upon its request, or, if the money is held in trust by
the Company or a Subsidiary as Paying Agent, the money will be
discharged from the trust.
SECTION 3.07. Holder's Right to Require Redemption. Holders of
Securities of a series will have the right to require the Company
to redeem those Securities only to the extent, and only on the
terms, set forth in the Supplemental Indenture relating to the
Securities of that series. If Holders of Securities of a series
have the right to require the Company to redeem those Securities,
unless otherwise provided in the Supplemental Indenture relating to
the Securities of that series, the terms of the redemption will
include those set forth in Section 3.08.
SECTION 3.08. Procedure for Requiring Redemption. If a Holder has
the right to require the Company to redeem Securities, to exercise
that right, the Holder must deliver the Securities to the Paying
Agent, endorsed for transfer and with the form on the reverse side
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entitled "Option to Require Redemption" completed. Delivery of
Securities to the Paying Agent as provided in this Section will
constitute an irrevocable election to cause the specified principal
amount of Securities to be redeemed. When Securities are delivered
to the Paying Agent as provided in this Section, unless the Company
fails to make the payments due as a result of the redemption within
20 days after the Securities are delivered to the Paying Agent as
provided in this Section interest on the Securities will cease to
accrue and, if the Securities are convertible or exchangeable, the
Holder's right to convert or exchange the Securities will
terminate.
The Company's determination of all questions regarding
the validity, eligibility (including time of receipt) and
acceptance of any Security for redemption will be final and
binding.
SECTION 3.09. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company will execute and the
Trustee will authenticate and deliver to the Holder (at the
Company's expense) a new Security equal of the same series in
principal amount equal to the unredeemed portion of the Security
which was surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. The Company will promptly
pay or cause to be paid the principal of, premium, if any, and
interest, if any, on each of the Securities of a series at the
places and time and in the manner provided in the Securities and in
the Supplemental Indenture relating to the series. An installment
of principal, premium or interest will be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date in
accordance with this Indenture or the applicable Supplemental
Indenture money designated for and sufficient to pay the
installment then due.
The Company will pay or cause to be paid interest on
overdue principal at the rate specified in the Securities; it will
also pay interest on overdue installments of interest at the same
rate (or such other rate as is provided in the applicable
Supplemental Indenture), to the extent lawful.
SECTION 4.02. Reporting. The Company will file with the Trustee
within 15 days after filing with the SEC, copies of its annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by
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rules and regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"). The Company also will
comply with the other provisions of TIA # 314(a).
SECTION 4.03. Corporate Existence. Subject to Article 5, the
Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however,
that the Company will not be required to preserve any such right or
franchise if the Board of Directors determines that the
preservation of the right or franchise is no longer desirable in
the conduct of the business of the Company and that its loss will
not be disadvantageous in any material respect to the Holders of
Securities of any series.
SECTION 4.04. Compliance Certificate. The Company will deliver to
the Trustee within 120 days after the end of each fiscal year of
the Company an Officers' Certificate stating that in the course of
the performance by the signers of their duties as Officers of the
Company they would normally have knowledge of any default by the
Company and whether or not the signers know of any default that
occurred during the fiscal year. If they do, the certificate will
describe the default, its status and what action the Company is
taking or proposes to take with respect thereto. The Company also
will comply with TIA # 314(a)(4).
SECTION 4.05. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this
Indenture.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Company May Consolidate, etc., Only on Certain
Terms. The Company will not consolidate with or merge into any
other corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any person, unless:
(1) the corporation formed by the consolidation or into
which the Company is merged or the person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety will be a
corporation organized and existing under the laws of the
United States of America, a State of the United States of
America or the District of Columbia and expressly assumes, by
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a one or more supplemental indentures, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, premium, if any, and
interest, if any, on all the Securities of each series and the
performance of every covenant of this Indenture and of all
Supplemental Indentures to be performed or observed by the
Company;
(2) immediately after giving effect to the transaction,
no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, will have
occurred and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that the consolidation, merger, conveyance, transfer or lease
and the supplemental indenture (or the supplemental indentures
together) comply with this Article and that all the conditions
precedent relating to the transaction set forth in this
Section have been fulfilled.
SECTION 5.02. Successor Corporation Substituted. Upon any event
described in Section 5.01, the successor corporation will succeed
to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture and all the Supplemental
Indentures relating to outstanding series of Securities, and the
predecessor corporation will be relieved of all obligations and
covenants under this Indenture and each of those Supplemental
Indentures.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) The Company defaults in the payment of interest on
any Security of any series when it becomes due and payable and
the default continues for a period of 30 days (or such other
period, which may be no period) as is specified in the
Supplemental Indenture relating to the series;
(2) The Company defaults in the payment of the principal
of, or premium, if any, on any Security of any series as and
when it becomes due and payable at its stated maturity or upon
redemption, acceleration or otherwise and, if provided in the
Supplemental Indenture relating to a series, the default
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continues for a period specified in the Supplemental
Indenture;
(3) The Company fails to comply with any of its other
covenants or agreements with regard to Securities of a series
or this Indenture (other than a covenant or agreement, a
default in whose performance or whose breach is dealt with
specifically elsewhere in this Section) and that failure
continues for a period of 45 days after the date of the notice
specified below;
(4) the Company, pursuant to any Bankruptcy Law
applicable to the Company:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors; or
(5) a court of competent jurisdiction enters an order or
decree under any applicable Bankruptcy Law:
(A) for relief in an involuntary case;
(B) appointing a Custodian of the Company or for
any substantial part of its property; or
(C) ordering its winding up or liquidation;
and the order or decree remains unstayed and in effect for 90
days.
Each of the occurrences described in clauses (1) through
(5) will constitute an Event of Default whatever the reason for the
occurrence and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body.
The term "Bankruptcy Law" means Title 11 of the United
States Code or any similar United States Federal or State law for
the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under
any Bankruptcy Law.
A Default under clause (3) of this Section is not an
Event of Default until the Trustee notifies the Company, or the
Holders of at least 25% in principal amount of the then outstanding
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Securities of a series with regard to which the Company has failed
to comply with a covenant or agreement notify the Company and the
Trustee, of the Default and the Company does not cure the Default
within 45 days after the giving of the notice. The notice must
specify the Default, demand that it be remedied and state that the
notice is a "Notice of Default."
A Default under clause (1), (2) or (3) with regard to
Securities of a series will not constitute a Default with regard to
Securities of any other series except to the extent, if any,
provided in the Supplemental Indenture relating to the other
series.
The Company will deliver to the Trustee, within 20 days
after it occurs, written notice in the form of an Officers'
Certificate of any event of which the Company is aware which with
the giving of notice and the lapse of time would become an Event of
Default under clause (3), its status and what action the Company is
taking or proposes to take with respect to it.
SECTION 6.02. Acceleration. If an Event of Default as to the
Securities of a series occurs and is continuing, unless the
principal of all of the Securities of the series has already become
due and payable, the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the
Securities of the series then outstanding by notice to the Company
and the Trustee, may declare the principal of and accrued interest,
if any, on all the Securities of the series to be due and payable.
Upon such a declaration, that principal and interest will be due
and payable immediately. If an Event of Default specified in
Section 6.01(4) or (5) occurs, the principal of, premium, if any,
and accrued interest, if any, on all the Securities will
automatically become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in principal amount of
the Securities of a series then outstanding, on behalf of the
Holders of all the Securities of the series, by notice to the
Trustee may rescind an acceleration and its consequences if all
existing Events of Default have been cured or waived except
nonpayment of principal, premium, if any, or interest, if any, that
has become due solely because of acceleration, and if the
rescission would not conflict with any judgment or decree. No such
rescission will affect any subsequent default or impair any
consequent right.
SECTION 6.03. Other Remedies. If an Event of Default as to a
series occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, premium,
if any, and interest, if any, on the Securities of the series or to
enforce the performance of any provision under this Indenture or
any applicable Supplemental Indenture.
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The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default will not impair the right or remedy or constitute
a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are
cumulative.
SECTION 6.04. Waiver of Existing Defaults. The Holders of a
majority in aggregate principal amount of the Securities of a
series then outstanding, on behalf of the Holders of all the
Securities of that series, by notice to the Trustee may consent to
the waiver of any past Default with regard to Securities of the
series and its consequences except (i) a default in the payment of
interest or premium, if any, on, or the principal of, Securities of
the series, or (ii) a default in respect of a covenant or a
provision that under Section 9.02 cannot be modified or amended
without the consent of the Holders of all Securities of the series
then outstanding. The defaults described in clauses (i) and (ii)
in the previous sentence may be waived with the consent of the
Holders of all Securities of the series then outstanding. When a
Default or Event of Default is waived, it is deemed cured and not
continuing, but no waiver will extend to any subsequent or other
Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities of a series then outstanding may
direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee with regard to the Securities
of that series or of exercising any trust or power conferred on the
Trustee with regard to the Securities of that series. However, the
Trustee may refuse to follow any direction that conflicts with law
or this Indenture or, subject to Section 7.01, that the Trustee
determines is unduly prejudicial to the rights of other
Securityholders or that would involve the Trustee in personal
liability provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with
such direction. Prior to taking any action as a result of a
direction given under this Section, the Trustee will be entitled to
indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking that action.
SECTION 6.06. Payments of Securities on Default; Suit Therefor.
The Company covenants that upon the occurrence of an Event of
Default described in Section 6.01(1) or (2), then, upon
demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Securities in all series, the
whole amount that will then have become due and payable on all such
Securities for principal, premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to the
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extent that payment of such interest is enforceable under
applicable law) on the overdue installments of interest at the rate
borne by the Securities in all series; and, in addition, such
further amount as will be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any expenses or
liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith. Until such demand by the Trustee, the
Company may pay the principal of and premium, if any, and interest
on the Securities of all series to the registered Holders, whether
or not the Securities in that series are overdue.
SECTION 6.07. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default as to a series is continuing;
(2) the Holders of at least 25% in principal amount of
the Securities of the series then outstanding make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security
or indemnity, and the Event of Default has not been waived;
and
(5) the Trustee has received no contrary direction from
the Holders of a majority in principal amount of the
Securities of the series then outstanding during such 60-day
period.
A Securityholder may not use this Indenture to prejudice
the rights of another Holder of the same series of Securities or to
obtain a preference or priority over another Holder of the same
series of Securities.
SECTION 6.08. Rights of Holders to Receive Payment and to Demand
Conversion. Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of any series to receive
payment of principal of, premium, if any, and interest, if any, on
the Security (and interest on overdue principal and interest on
overdue installments of interest, if any, as provided in Section
4.01), on or after the respective due dates expressed in the
Security or, in the case of redemption, on or after the redemption
date, or in the case of conversion or exchange, to receive the
security issuable upon conversion or exchange or to institute suit
for the enforcement of any such payment, conversion or exchange on
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or after the applicable due date, redemption date or conversion or
exchange date, as the case may be, against the Company, will not be
impaired or affected without the consent of the Holder.
SECTION 6.09. Collection Suit by Trustee. If an Event of Default
in payment of principal, premium, if any, or interest, if any,
specified in clause (1) or (2) of Section 6.01 occurs and is
continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole
amount of principal, premium, if any, and interest remaining unpaid
(together with interest on that unpaid interest to the extent
lawful) and the amounts provided for in Section 7.07.
SECTION 6.10. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
and the Holders of the Securities of any or all series allowed in
any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of
a trustee in bankruptcy or other person performing similar
functions, and any Custodian in any such judicial proceeding is
hereby authorized by each Holder to make payments to the Trustee
and, if the Trustee consents to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other
amounts due the Trustee under Section 7.07.
SECTION 6.11. Restoration of Positions. If a judicial proceeding
by the Trustee or a Securityholder to enforce any right or remedy
under this Indenture or any Supplemental Indenture is dismissed or
decided favorably to the Company, except as otherwise provided in
the judicial proceeding, the Company, the Trustee and the
Securityholders will be restored to the positions they would have
been in if the judicial proceeding had not been instituted.
SECTION 6.12. Priorities. If the Trustee collects any money
pursuant to this Article 6 with respect to Securities of a series,
subject to Article 11, it will pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section
7.07;
SECOND: to Securityholders for amounts due and unpaid
on the Securities of the series for principal and interest,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Securities of the series
for principal and interest, respectively; and
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THIRD: to the Company.
The Trustee may fix a record date and payment date for
any payment to Holders of Securities of a series pursuant to this
Section. At least 15 days before the record date, the Company will
mail to each Holder of Securities of the series and the Trustee a
notice that states the record date, the payment date and the amount
to be paid.
SECTION 6.13. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or any
Supplemental Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section 6.13 does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 6.07, or a
suit by Holders of in aggregate more than 10% in principal amount
of the Securities of a series then outstanding, or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security held by
that Holder on or after the due date provided in the Security or to
any suit for the enforcement of the right to convert or exchange
any Security in accordance with the provisions of a Supplemental
Indenture applicable to that Security.
SECTION 6.14. Stay, Extension or Usury Laws. The Company agrees
(to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim, and
will resist any and all efforts to be compelled to take the benefit
or advantage of, any stay or extension law or any usury or other
law, wherever enacted, now or at any subsequent time in force,
which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any, and/or interest on
any of the Securities as contemplated in this Indenture or a
Supplemental Indenture, or which may affect the covenants or
performance of this Indenture, and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and agrees that it will not hinder, delay
or impede the execution of any power granted to the Trustee in this
Indenture or any Supplemental Indenture, but (to the extent that it
may lawfully do so) will suffer and permit the execution of any
such power as though no such law had been enacted.
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SECTION 6.15. Liability of Stockholders, Officers, Directors and
Incorporators. No stockholder, officer, director or incorporator,
as such, past, present or future, of the Company, or any of its
successor corporations, will have any personal liability in respect
of the Company's obligations under this Indenture or any Securities
by reason of his or its status as such stockholder, officer,
director or incorporator; provided, however, that nothing in this
Indenture or in the Securities will prevent recourse to and
enforcement of the liability of any stockholder or subscriber to
Capital Stock in respect of shares of Capital Stock which have not
been fully paid up.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise the rights and powers vested
in it by this Indenture and any applicable Supplemental Indenture
and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture and any Supplemental Indentures and no implied
covenants or obligations will be read into this Indenture or
any Supplemental Indenture against the Trustee; and
(ii) the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed in them, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this
Indenture in the absence of bad faith on the Trustee's part;
provided, however, that the Trustee will examine the
certificates and opinions to determine whether or not they
substantially conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee will not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
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proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee will not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05; and
(4) the Trustee will not be required to expend or risk
its own funds or otherwise incur financial liability in the
performance of any of its duties under this Indenture or any
Supplemental Indenture or in the exercise of any of its rights
or powers, if it has reasonable grounds to believe repayment
of the funds or adequate indemnity against the risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee is subject to the provisions of this Section 7.01 and
to the provisions of the TIA.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any
money received by it except as the Trustee may agree with the
Company. Money and Government Obligations held in trust by the
Trustee need not be segregated from other funds or items except to
the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel which
conforms to Section 12.05. The Trustee will not be liable for any
action it takes or omits to take in good faith in reliance on such
an Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and will not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee will not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers, except conduct which
constitutes wilful misconduct, negligence or bad faith.
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(e) The Trustee may consult with counsel, and the
Trustee will not be liable for any action it takes or omits in
reliance on, and in accordance with, written advice of counsel.
(f) The Trustee will not be required to investigate any
facts or matters stated in any document, but if it decides to
investigate any matters or facts, the Trustee or its agents or
attorneys will be entitled to examine the books, records and
premises of the Company.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or any of its
affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar, co-registrar or co-paying
agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) is not
responsible for and makes no representation as to the validity or
adequacy of this Indenture, (ii) will not be responsible for and
will not make any representation as to the validity or adequacy of
any Supplemental Indenture, (iii) will not be accountable for the
Company's use of the proceeds from the Securities of any series,
and (iv) will not be responsible for any statement of the Company
in this Indenture or any Supplemental Indenture, other than the
Trustee's certificate of authentication, or in any prospectus used
in the sale of any of the Securities, other than statements, if
any, provided in writing by the Trustee for use in such a
prospectus.
SECTION 7.05. Notice of Defaults. The Trustee will give to the
Holders of the Securities of a series notice of any Default with
regard to the Securities of that series known to the Trustee,
within 90 days after it occurs; provided, that, except in the case
of a Default in the payment of the principal of, or premium, if
any, or interest on any Security, the Trustee will be protected in
withholding notice of the Default if and so long as a committee of
its Trust Officers in good faith determines that the withholding of
the notice is in the interests of the Holders of the Securities of
the series.
SECTION 7.06. Reports by Trustee. Within 60 days after each April
15 beginning with the April 15 following the date of this
Indenture, the Trustee will mail to each Securityholder, at the
name and address which appears on the registration books of the
Company, and to each Securityholder who has, within the two years
preceding the mailing, filed that person's name and address with
the Trustee for that purpose and each Securityholder whose name and
address have been furnished to the Trustee pursuant to Section
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2.07, a brief report dated as of that April 15 which complies with
TIA # 313(a). The Trustee also will comply with TIA # 313(b).
A copy of each report will at the time of its mailing to
Securityholders be filed with each stock exchange on which
Securities are listed and also with the SEC. The Company will
promptly notify the Trustee when the Securities of any series are
listed on any stock exchange and of any delisting of Securities of
any series.
SECTION 7.07. Compensation and Indemnity. The Company will pay to
the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation will not be limited by any law
on compensation of a trustee of an express trust. The Company will
reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Those expenses will
include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts.
The Company will indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorneys' fees)
incurred by it in connection with the administration of the trust
created by this Indenture or any Supplemental Indenture and the
performance of its duties under this Indenture or any Supplemental
Indenture. The Trustee will notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so
notify the Company will not relieve the Company of its obligations
under this Section. The Company will defend the claim and the
Trustee may have separate counsel and the Company will pay the fees
and expenses of such counsel. The Company need not pay for any
settlement made without its consent. The Company need not reimburse
any expense or indemnify against any loss, expense or liability
incurred by the Trustee to the extent it is due to the Trustee's
own wilful misconduct, negligence or bad faith.
To secure the Company's obligation to make payments to
the Trustee under this Section 7.07, the Trustee will have a lien
prior to the Securities on all money or property held or collected
by the Trustee, other than money or property held in trust to pay
principal or interest on particular Securities. Those obligations
of the Company will survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in clause (4) or (5) of Section
6.01 occurs, the expenses and the compensation for the services of
the Trustee are intended to constitute expenses of administration
under any Bankruptcy Law.
For purposes of this Section 7.07, "Trustee" will include
any predecessor Trustee, but the wilful misconduct, negligence or
bad faith of any Trustee will not affect the rights of any other
Trustee under this Section 7.07.
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SECTION 7.08. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in
aggregate principal amount of the Securities of all series then
outstanding may remove the Trustee by so notifying the Trustee and
the Company and may appoint a successor Trustee. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an
order for relief is entered with respect to the Trustee under
any bankruptcy law;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company will
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
aggregate principal amount of Securities of all series then
outstanding may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
No removal or appointment of a Trustee will be valid if
that removal or appointment would conflict with any law applicable
to the Company.
A successor Trustee will deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee will, subject to the
lien provided for in Section 7.07, transfer all property held by it
as a Trustee to the successor Trustee, the resignation or removal
of the retiring Trustee will become effective, and the successor
Trustee will have all the rights, powers and duties of the Trustee
under this Indenture and all Supplemental Indentures. A successor
Trustee will mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in aggregate
principal amount of Securities of all series then outstanding may
petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee.
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Notwithstanding the replacement of the Trustee pursuant
to this Section, the Company's obligations under Section 7.07 will
continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust assets to, another Person,
the resulting, surviving or transferee Person will, without any
further act, be the successor Trustee.
If at the time a successor by merger, conversion or
consolidation to the Trustee succeeds to the trusts created by this
Indenture any of the Securities have been authenticated but not
delivered, the successor to the Trustee may adopt the certificate
of authentication of the predecessor Trustee, and deliver the
Securities which were authenticated by the predecessor Trustee; and
if at that time any of the Securities have not been authenticated,
the successor to the Trustee may authenticate those Securities
either in the name of the predecessor or in its own name as the
successor to the Trustee; and in either case the certificates of
authentication will have the full force provided in this Indenture
for certificates of authentication.
SECTION 7.10. Eligibility; Disqualification. The Trustee will at
all times satisfy the requirements of TIA # 310(a). The Trustee
will at all times have a combined capital and surplus of at least
$50,000,000 as set forth in its most recently published annual
report of condition, which will be deemed for this paragraph to be
its combined capital and surplus. The Trustee will comply with TIA
# 310(b), including the optional provision permitted by the second
sentence of TIA # 310(b)(9).
SECTION 7.11. Preferential Collection of Claims. The Trustee will
comply with TIA # 311(a), excluding any creditor relationship
listed in TIA # 311(b). A Trustee who has resigned or been removed
will be subject to TIA # 311(a) to the extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's Obligations. When (i)
the Company delivers to the Trustee all outstanding Securities of
all series (other than Securities replaced pursuant to Section
2.09) for cancellation or (ii) all outstanding Securities of all
series have become due and payable, or are due and payable within
one year or are to be called for redemption within one year, under
arrangements satisfactory to the Trustee for giving the notice of
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redemption, and the Company irrevocably deposits in trust with the
Trustee (subject to Article Eleven) money or U.S. Government
Obligations sufficient to pay the principal, premium, if any, and
interest, if any, on the Securities of all series to maturity or
redemption, as the case may be, and if, in the case of either (i)
or (ii) above the Company also pays or causes to be paid all other
sums payable by the Company under this Indenture, then this
Indenture will cease to be of further effect.
Notwithstanding the foregoing, the Company's obligations
to pay principal, premium, if any, and interest, if any, on the
Securities and the Company's obligations in Sections 2.05, 2.06,
2.07, 2.08, 2.09, 7.07, 7.08 and in Article Ten will survive until
all the Securities of all series are no longer outstanding.
Thereafter, the Company's obligations in Section 7.07 will survive.
Before or after a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities of a series at a future date to the extent the
Securities are redeemable in accordance with Article Three and the
applicable Supplemental Indenture.
After a deposit pursuant to this Section 8.01 or after
all outstanding Securities of all series have been delivered to the
Trustee for cancellation, the Trustee upon request from the
Company, accompanied by an Officers' Certificate and an Opinion of
Counsel which complies with Section 12.05, and at the cost of the
Company, will acknowledge in writing the satisfaction and discharge
of the Company's obligations under the Securities of all series and
this Indenture except for those surviving obligations specified
above.
In order to have money available on payment dates to pay
principal, premium, if any, or interest, if any, on the Securities
of a series, the U.S. Government Obligations will be payable as to
principal, premium, if any, or interest on or before those payment
dates in amounts sufficient to provide the necessary money. U.S.
Government Obligations used for this purpose may not be callable at
the issuer's option.
"U.S. Government Obligations" means:
(1) direct obligations of the United States for the
payment of which its full faith and credit is pledged; or
(2) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United
States the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States.
SECTION 8.02. Application of Trust Money. Subject to Article
Eleven and Section 8.03, the Trustee will hold in trust money or
U.S. Government Obligations deposited with it pursuant to Section
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8.01. It will apply the deposited money and the money from the
U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture and any applicable Supplemental
Indentures to the payment of principal of, premium, if any, and
interest, if any, on the Securities with regard to which the money
or U.S. Government Obligations were deposited.
SECTION 8.03. Repayment to the Company. The Trustee and the
Paying Agent will promptly pay to the Company upon request any
excess money or securities held by them at any time. The Trustee
and the Paying Agent will pay to the Company upon request any money
held by them for the payment of principal, premium or interest that
remains unclaimed for two years. After such payment, all liability
of the Trustee and the Paying Agent with respect to that money will
cease.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to establish the form and terms of the Securities of
any series as contemplated in Article Two of this Indenture;
(4) to provide for uncertificated Securities in addition
to or in place of certificated Securities; or
(5) to make any change that does not materially
adversely affect the rights of any Securityholder.
After an amendment under this Section becomes effective, the
Company will mail to the Securityholders a notice briefly
describing the amendment. The failure to give such notice to all
Securityholders, or any defect in a notice, will not impair or
affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company and the
Trustee may (i) amend or supplement this Indenture or the
Securities without notice to any Securityholder but with the
written consent of the Holders of a majority in aggregate principal
amount of the Securities of all series then outstanding or (ii)
supplement this Indenture with regard to a series of Securities,
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amend or supplement a Supplemental Indenture relating to a series
of Securities, or amend the Securities of a series, without notice
to any Securityholder but with the written consent of the Holders
of a majority in aggregate principal amount of the Securities of
that series then outstanding. The Holders of a majority in
principal amount of the Securities of all series then outstanding
may waive compliance by the Company with any provision of this
Indenture or the Securities without notice to any Securityholder.
The Holders of a majority in principal amount of the Securities of
any series then outstanding may waive compliance with any provision
of this Indenture, any Supplemental Indenture or the Securities of
that series with regard to the Securities of that series without
notice to any Securityholder. However, without the consent of the
Holder so affected, no amendment, supplement or waiver, including
a waiver pursuant to Section 6.04, may:
(1) extend the fixed maturity of any Security,
reduce the rate or extend the time for payment of interest on
any Security, reduce the principal amount of any Security or
premium, if any, on any Security;
(2) impair or affect the right of a Holder to
institute suit for the payment of interest, if any, principal
or premium, if any, on the Securities;
(3) change the currency in which the Securities are
payable from that specified in the Securities or in a
Supplemental Indenture applicable to the Securities;
(4) impair the right, if any, to convert the
Securities into, or exchange the Securities for, other
securities or assets;
(5) reduce the percentage of Securities required to
consent to an amendment, supplement or waiver;
(6) reduce the amount payable upon the redemption
of any Security or change the time at which any Security may or
will be redeemed;
(7) modify the provisions of any Supplemental
Indenture with respect to subordination of the Securities of a
series in a manner adverse to the Securityholders; or
(8) make any change in Section 6.04 or 6.08 or the
fifth sentence of this Section.
It will not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, supplement or waiver, but it will be sufficient if the
consent approves the substance of the amendment, supplement or
waiver.
29
<PAGE>
<PAGE>
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment or supplement to this Indenture, any Supplemental
Indenture or the Securities will comply with the TIA as then in
effect.
SECTION 9.04. Revocation and Effect of Consents. A consent to an
amendment, supplement or waiver by a Holder of a Security will bind
the Holder and every subsequent Holder of a Security or portion of
a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke
the consent as to the Holder's Security or portion of a Security.
For a revocation to be effective, the Trustee must receive notice
of the revocation before the date the amendment, supplement or
waiver becomes effective. After an amendment, supplement or waiver
becomes effective in accordance with its terms, it will bind every
Holder of every Security of every series to which it applies.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a series of Securities, the Trustee
may require the Holder of a Security of the series to deliver the
Holder's Security to the Trustee, who will place an appropriate
notation about the amendment, supplement or waiver on the Security
and will return it to the Holder. Alternatively, the Company may,
in exchange for the Security, issue, and the Trustee will
authenticate, a new Security that reflects the amendment,
supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, etc. The Trustee will
sign any amendment, supplement or waiver authorized pursuant to
Article Two or this Article Nine if the amendment, supplement or
waiver does not adversely affect the rights, liabilities or
immunities of the Trustee. If it does adversely affect those
rights, liabilities or immunities, the Trustee may but need not
sign it. The Company may not sign an amendment or supplement until
the amendment or supplement is approved by an appropriate Board
Resolution.
ARTICLE TEN
CONVERSION OR EXCHANGE OF SECURITIES
SECTION 10.01. Provisions Relating to Conversion or Exchange of
Securities. Any rights which Holders of Securities of a series
will have to convert those Securities into other securities of the
Company or to exchange those Securities for securities of other
Persons or other assets, including but not limited to the terms of
the conversion or exchange and the circumstances, if any, under
30
<PAGE>
<PAGE>
which those terms will be adjusted to prevent dilution or
otherwise, will be set forth in a Supplemental Indenture relating
to the series of Securities. In the absence of provisions in a
Supplemental Indenture relating to a series of Securities setting
forth rights to convert or exchange the Securities of that series
into or for other securities or assets, Holders of the Securities
of that series will not have any such rights.
ARTICLE ELEVEN
SINKING OR PURCHASE FUNDS
SECTION 11.01. Provisions Relating to Sinking or Purchase Funds.
Any requirements that the Company make, or rights of the Company to
make at its option, payments prior to maturity of the Securities of
a series which will be used as a fund with which to redeem or to
purchase Securities of that series, including but not limited to
provisions regarding the amount of the payments, when the Company
will be required, or will have the option, to make the payments and
when the payments will be applied, will be set forth in a
Supplemental Indenture relating to the series of Securities. In
the absence of provisions in a Supplemental Indenture relating to
a series of Securities setting forth requirements that the Company
make, or rights of the Company to make at its option, payments to
be used as a fund with which to redeem or purchase Securities of
the series, the Company will not be subject to any such
requirements and will not have any such rights. However, unless
otherwise specifically provided in a Supplemental Indenture
relating to a series of Securities, the Company will at all times
have the right to purchase Securities from Holders in market
transactions or otherwise.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of
this Indenture or any Supplemental Indenture limits, qualifies or
conflicts with the duties imposed by ## 310 through 317 of the TIA,
the imposed duties will control.
SECTION 12.02 Supplemental Indentures Contract. If any provision
of a Supplemental Indenture relating to a series of Securities is
inconsistent with any provision of this Indenture, the provision of
the Supplemental Indenture will control with regard to the
Securities of the series to which it relates.
31
<PAGE>
<PAGE>
SECTION 12.03. Notices. Any notice or communication under or
relating to this Indenture or any Supplemental Indenture will be
sufficiently given if in writing and delivered in person or mailed
by first-class mail, certified or registered, return receipt
requested, addressed as follows:
if to the Company: Lennar Corporation
700 N.W. 107th Avenue
Miami, Florida 33172
Attention: Vice President - Finance
if to the Trustee: The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Either the Company or the Trustee by a notice to the
other may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Securityholder
will be mailed to the Securityholder at the Securityholder's
address as it appears on the registration books of the Registrar
and will be sufficiently given to the Securityholder if so mailed
within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it will not affect its sufficiency
with respect to other Securityholders. If a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
If by reason of the suspension of regular mail service,
or by reason of any other cause, it is impossible to mail any
notice as required by this Indenture or any Supplemental Indenture,
then any method of notification which is approved by the Trustee
will constitute a sufficient mailing of the notice.
The Company may set a record date for purposes of
determining the identity of Securityholders entitled to vote or
consent to any action by vote or consent authorized or permitted by
Sections 6.04 and 6.05. The record date will be the later of 30
days prior to the first solicitation of consents or the date of the
most recent list of Holders furnished to the Trustee pursuant to
Section 2.07 prior to the solicitation.
SECTION 12.04. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA # 312(b) with other
Securityholders with respect to their rights under this Indenture
or the Securities. Each of the Company, the Trustee, the Registrar
and anyone else will have the protection of TIA # 312(c).
32
<PAGE>
<PAGE>
SECTION 12.05. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture or any Supplemental Indenture,
the Company will furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signer, all conditions precedent, if any,
provided for in this Indenture or any Supplemental Indenture
relating to the proposed action have been complied with;
(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all those conditions precedent have been
complied with; and
(3) such other opinions and certificates as may be
required by applicable provisions of this Indenture or the
Supplemental Indenture.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture or a
Supplemental Indenture will include (i) a statement that the person
making the certificate or opinion has read the covenant or
condition; (ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in the certificate or opinion are based; (iii) a
statement that, in the opinion of the person giving the certificate
or opinion, that person has made such examination or investigation
as is necessary to enable that person to express an informed
opinion as to whether or not the covenant or condition has been
complied with; and (iv) a statement as to whether or not, in the
opinion of that person, the condition or covenant has been complied
with. Nothing in this Section 12.05 will be construed as requiring
that the Company furnish to the Trustee any evidence of compliance
with the conditions and covenants provided for in this Indenture or
any Supplemental Indenture other than the evidence specified in
this Section 12.05.
SECTION 12.06. When Treasury Securities Disregarded. In
determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, or anyone under direct or indirect
control or under direct or indirect common control with the Company
will be disregarded and deemed not to be outstanding, except that
for the purposes of determining whether the Trustee will be
protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned will be so
disregarded. Securities so owned which have been pledged in good
faith will not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect
to the Securities and that the pledgee is not the Company or a
person directly or indirectly controlling or controlled by, or
under common control with, the Company. Nothing in this Section
12.06 will be construed as requiring that the Company furnish to
33
<PAGE>
<PAGE>
the Trustee any evidence of compliance with the conditions and
covenants provided for in the Indenture other than the evidence
specified in this Section 12.06.
SECTION 12.07. Rules by Trustee, Paying Agent, Registrar. The
Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday, or a day on which banking institutions are not required
to be open in the State of New York. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no
interest on the sum being paid will accrue for the intervening
period.
SECTION 12.09. Governing Law and Submission to Jurisdiction. The
laws of the State of New York will govern this Indenture, each
Supplemental Indenture and the Securities. The Company submits to
the jurisdiction of the courts of the State of New York sitting in
the Borough of Manhattan, City of New York, and of the United
States District Court for the Southern District of New York, in any
action or proceeding to enforce any of its obligations under this
Indenture or any Supplemental Indenture or with regard to the
Securities, and agrees not to seek a transfer of any such action or
proceeding on the basis of inconvenience of the forum or otherwise
(but the Company will not be prevented from removing any such
action or proceeding from a state court to the United States
District Court for the Southern District of New York). The Company
agrees that process in any such action or proceeding may be served
upon it by registered mail or in any other manner permitted by the
rules of the court in which the action or proceeding is brought.
SECTION 12.10. Actions by the Company. Any action or proceeding
brought by the Company to enforce any right, assert any claim or
obtain any relief in connection with this Indenture, any
Supplemental Indenture or the Securities will be brought by the
Company exclusively in the courts of the State of New York sitting
in the Borough of Manhattan, City of New York or in the United
States District Court for the Southern District of New York.
SECTION 12.11. No Adverse Interpretation of Other Agreements.
Neither this Indenture nor any Supplemental Indenture may be used
to interpret another indenture, loan or debt agreement of the
Company or any Subsidiary. No such indenture, loan or debt
agreement may be used to interpret this Indenture or any
Supplemental Indenture.
34
<PAGE>
<PAGE>
SECTION 12.12. Successors. All agreements of the Company in this
Indenture, any Supplemental Indentures and the Securities will bind
its successors. All agreements of the Trustee in this Indenture and
any Supplemental Indentures will bind its successors.
SECTION 12.13. Duplicate Originals. The parties may sign any
number of copies of this Indenture or any Supplemental Indenture.
Each signed copy will be an original, but all of them together will
represent the same agreement.
SECTION 12.14. Table of Contents, Headings, etc. The table of
contents, cross-reference sheet and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only. They are not to be considered a part of this
Indenture, and will in no way modify or restrict any of the terms
or provisions of this Indenture.
IN WITNESS WHEREOF, the parties to this Indenture have
caused it to be duly executed as of the day and year first above
written.
LENNAR CORPORATION
By:_______________________
Leonard Miller
Chairman and President
THE FIRST NATIONAL BANK OF
CHICAGO
By:_______________________
Name:
Title:
35
<PAGE>
<PAGE>
EXHIBIT A
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series described in the
within-mentioned Indenture and Supplemental Indenture.
[TRUSTEE]
as Trustee
By:_____________________________
Authorized Signature
A-1
<PAGE>
<PAGE>
EXHIBIT 5
April 6, 1994
Lennar Corporation
700 Northwest 107th Avenue
Miami, Florida 33172
Dear Sirs:
We have acted as counsel to Lennar Corporation (the
"Company") in connection with the offering from time to time by the
Company of (i) its common stock, par value $.10 per share, ("Common
Stock"), (ii) its preferred stock (which may be issued in one or
more series) ("Preferred Stock"), (iii) its debt securities (which
may be issued in one or more series) to be issued under an
Indenture (the "Indenture") dated as of April 5, 1994 between the
Company and The First National Bank of Chicago and supplemental
indentures executed as contemplated by the Indenture ("Debt
Securities") and (iv) warrants entitling the holders to purchase
Common Stock, Preferred Stock or Debt Securities ("Warrants"),
(collectively, the Common Stock, Preferred Stock, Debt Securities
and Warrants are the "Securities") at an aggregate initial offering
price which will not exceed $200,000,000. In that capacity, we are
familiar with the proceedings, corporate and other, relating to the
authorization of the issuance and the sale from time to time of the
Securities.
Based on the foregoing, and such other examination of
law and fact as we have deemed necessary, we are of the opinion
that:
1. When the Board of Directors of the Company
authorizes the issuance of Common Stock and in accordance with that
authorization that Common Stock (i) is sold for at least its par
value as contemplated in the Registration Statement, or (ii) is
issued on exercise of a right to convert Debt Securities or
Preferred Stock, or on exercise of Warrants, which are sold for
more than the par value of the Common Stock (including any amount
paid at the time of conversion or exercise) as contemplated in the
Registration Statement, the Common Stock will be legally issued,
fully paid and non-assessable.
2. When the Board of Directors of the Company
authorizes the creation and sale of one or more series of Preferred
Stock and in accordance with that authorization that Preferred
Stock is (i) sold for at least its par value as contemplated in the
Registration Statement or (ii) issued on conversion of Debt
Securities or on exercise of Warrants which are sold for more than
the par value of the Preferred Stock (including any amount paid at
the time of conversion or exercise) as contemplated in the
Registration Statement, that Preferred Stock will be validly
issued, fully paid and non-assessable.
3. When the Board of Directors of the Company
authorizes the creation of one or more series of Debt Securities
and in accordance with that authorization and with the Indenture
those Debt Securities are (i) sold as contemplated in the
Registration Statement or (ii) sold upon exercise of Warrants which
are issued as contemplated in the Registration Statement, and the
interest on those Debt Securities is not at a rate which violates
applicable law, those Debt Securities will constitute valid and
legally binding obligations of the Company.
4. When the Board of Directors of the Company
authorizes the issuance of Warrants which provide for the issuance
of Securities upon payment of consideration equal at least to the
par value of the Securities being issued, if applicable, and which
do not contain provisions which violate applicable law, and in
accordance with that authorization those Warrants are issued as
contemplated in the Registration Statement, the Warrants will
constitute valid and legally binding obligations of the Company.
We consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the
caption "Legal Matters" in the prospectus which is a part of the
Registration Statement.
Very truly yours,
ROGERS & WELLS
PAGE
<PAGE>
EXHIBIT 12
COMPUTATION OF EARNINGS TO FIXED CHARGES
(INCLUDING LIMITED-PURPOSE FINANCE SUBSIDIARIES)
<TABLE>
Fiscal Years Ended
-------------------------------------------------------------------------
November 30, November 30, November 30, November 30, November 30,
1993 1992 1991 1990 1989
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
(dollars in thousands except per share amounts)
EARNINGS:
Pre-tax income plus fixed charges as
computed below, adjusted to
exclude the amount of any interest
capitalized during the period.
Pre-tax Income $82,054 $45,363 $33,043 $21,013 $42,564
Fixed Charges $33,765 $36,639 $38,526 $47,199 $48,494
Less: interest capitalized ($17,100) ($15,000) ($14,200) ($15,600) ($15,700)
------------- ------------- --------- --------- ---------
"Earnings" $98,719 $67,002 $57,369 $52,612 $75,358
============= ============= ============= ============= =============
FIXED CHARGES:
Interest, whether expensed or
capitalized, and amortization of
debt discounts or premiums.
Interest Incurred (all of Lennar and $19,700 $16,800 $14,200 $15,600 $15,700
LFS interest)
Limited Purpose interest (all expensed) $14,065 $19,839 $24,326 $31,599 $32,794
------------ ------------ ------------ ------------ ------------
"Fixed Charges" $33,765 $36,639 $38,526 $47,199 $48,494
============ ============ ============ ============ ============
EARNINGS TO FIXED CHARGES 2.9 1.8 1.5 1.1 1.6
INCLUDING LIMITED-PURPOSE
FINANCE SUBSIDIARIES
</TABLE>
PAGE
<PAGE>
COMPUTATION OF EARNINGS TO FIXED CHARGES
(EXCLUDING LIMITED-PURPOSE FINANCE SUBSIDIARIES)
<TABLE>
Fiscal Years Ended
-------------------------------------------------------------------------
November 30, November 30, November 30, November 30, November 30,
1993 1992 1991 1990 1989
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
(dollars in thousands except per share amounts)
EARNINGS:
Pre-tax income plus fixed charges as
computed below, adjusted to
exclude the amount of any interest
capitalized during the period.
Pre-tax Income $82,054 $45,363 $33,043 $21,013 $42,564
Fixed Charges $19,700 $16,800 $14,200 $15,600 $15,700
Less: interest capitalized ($17,100) ($15,000) ($14,200) ($15,600) ($15,700)
------------- ------------- --------- --------- ---------
"Earnings" $84,654 $47,163 $33,043 $21,013 $42,564
============= ============= ============= ============= =============
FIXED CHARGES:
Interest, whether expensed or
capitalized, and amortization of
debt discounts or premiums.
Interest Incurred (all of Lennar and $19,700 $16,800 $14,200 $15,600 $15,700
------------ ------------ ------------ ------------ ------------
LFS interest)
"Fixed Charges" $19,700 $16,800 $14,200 $15,600 $15,700
============ ============ ============ ============ ============
EARNINGS TO FIXED CHARGES 4.3 2.8 2.3 1.3 2.7
EXCLUDING LIMITED-PURPOSE
FINANCE SUBSIDIARIES
</TABLE>
PAGE
<PAGE>
EXHIBIT 24(ii)
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Lennar Corporation:
We consent to incorporation by reference in the Registration
Statement of Lennar Corporation on Form S-3 of our report dated
January 18, 1994, relating to the consolidated balance sheets of
Lennar Corporation and subsidiaries as of November 30, 1993 and
1992, and the related consolidated statements of earnings, cash
flows, and stockholders' equity, and the related schedules for
each of the years in the three-year period ended November 30,
1993, which report appears in the November 30, 1993 annual report
on Form 10-K of Lennar Corporation.
/S/ KPMG PEAT MARWICK
April 5, 1994
<PAGE>
EXHIBIT 26
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices)(Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
LENNAR CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 59-1281887
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
700 N.W. 107th Avenue
Miami, Florida 33172
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois, on the 5th day of April, 1994.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
By /s/ R. D. MANELLA
R. D. MANELLA
VICE PRESIDENT
*Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26(b) to the Registration Statement on
Form S-3 of Dow Capital B.V. and The Dow Chemical Company, filed with
the Securities and Exchange Commission on June 3, 1991 (Registration No.
33-36314).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 5, 1994
Securities and Exchange Commission,
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Lennar
Corporation and The First National Bank of Chicago, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939,
as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make
such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. MANELLA
R. D. MANELLA
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
A copy of the latest report of conditions of the trustee published pursuant
to law or the requirements of its supervising or examining authority.
5
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1993
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding of the last
business day of the quarter.
SCHEDULE RC--BALANCE SHEET
Dollar Amounts in C400 <-
Thousands RCFD BIL MIL THOU ------
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from
depository institutions
(from Schedule RCA-A):
a. Noninterest-bearing balances
and currency and coin(1) 0081 3,552,441 1.a.
b. Interest-bearing balances(2) 0071 5,687,085 1.b.
2. Securities (from Schedule RC-B) 0390 470,252 2
3. Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the
bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold 0276 3,985,638 3.a.
b. Securities purchased under
agreements to resell 0277 880,886 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C) RCFD 2122 13,308,340 4.a.
b. LESS: Allowance for loan and
lease losses RCFD 3123 339,885 4.b.
c. LESS: Allocated transfer risk
reserve RCFD 3128 0 4.c.
d. Loans and leases, net of
unearned income, allowance,
and reserve (item 4.a minus
4.b and 4.c) 2125 12,968,455 4.d.
5. Assets held in trading accounts 2146 3,109,630 5.
6. Premises and fixed assets
(including capitalized leases) 2145 497,559 6.
7. Other real estate owned
(from Schedule RC-M) 7 2150 101,446 7.
8. Investments in unconsolidated
subsidiaries and associated -98
companies (from Schedule RC-M) 2130 6,375 8.
9. Customers' liability to this bank
on acceptances outstanding 2155 477,130 9.
10.Intangible assets (from Schedule
RC-M) 2143 147,257 10.
11.Other assets (from Schedule RC-F) 2160 2,607,308 11.
12.Total assets (sum of items 1
through 11) 2170 34,491,462 12.
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC--CONTINUED
Dollar Amounts in C400
Thousands RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C>
ASSETS
LIABILITIES
13. Deposits:
a. In domestic offices (sum
of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 15,870,533 13.a.
(1) Noninterest-bearing(1) RCON 6631 7,494,138 13.a.(1)
(2) Interest-bearing RCON 6636 8,376,395 13.a.(2)
b. In foreign offices, Edge
and Agreement subsidiaries,
and IBFs (from Schedule
RC-E, part II) RCFN 2200 7,254,022 13.b.
(1) Noninterest bearing RCFN 6631 352,283 13.b.(1)
(2) Interest-bearing RCFN 6636 6,901,739 13.b.(2)
14. Federal funds purchased and
securities sold under
agreements to repurchase
in domestic offices of
the bank and of its Edge
and Agreement subsidiaries,
and in IBFs:
a. Federal funds purchased RCFD 0278 2,649,907 14.a.
b. Securities sold under
agreements to repurchase RCFD 0279 171,899 14.b.
15. Demand notes issued to the
U.S. Treasury RCON 2840 106,087 15.
16. Other borrowed money RCFD 2850 1,782,869 16.
17. Mortgage indebtedness and
obligations under capitalized
leases RCFD 2910 267,000 17.
18. Bank's liability on acceptance
executed and outstanding RCFD 2920 477,130 18.
19. Subordinated notes and debentures RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule
RC-G) RCFD 2930 2,049,329 20.
21. Total liabilities (sum of
items 13 through 20) RCFD 2948 31,803,776 21.
22. Limited-Life preferred stock
and related surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock
and related surplus RCFD 3838 0 23.
24. Common stock RCFD 3230 200,858 24.
25. Surplus (exclude all surplus
related to preferred stock) RCFD 3839 2,254,940 25.
26. a. Undivided profits and capital
reserves RCFD 3632 232,478 26.a.
b. LESS: Net unrealized loss
on marketable equity
securities RCFD 0297 (299) 26.b.
27. Cumulative foreign currency
translation adjustments RCFD 3284 (889) 27.
28. Total equity capital
(sum of items 23 through 27) RCFD 3210 2,687,686 28.
29. Total liabilities, limited-life
preferred stock, and equity
capital (sum of items 21, 22,
and 28) RCFD 3300 34,491,462 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for
the bank by independent external
auditors as of any date during 1992 RCFA 06724 N/A M.1.
1 = Independent audit of the bank conducted in
accordance with generally accepted auditing
standards by a certified public accounting
firm which submits a report on the bank
2 = Independent audit of the bank's parent
holding company conducted in accordance
with generally accepted auditing standards
by a certified public accounting firm which
submits a report on the consolidated
holding company (but not on the bank
separately)
3 = Directors' examination of the bank conducted
in accordance with generally accepted auditing
standards by a certified public accounting
firm (may be required by state chartering
authority)
4.= Directors' examination of the bank performed
by other external auditors (may be required
by state chartering authority)
5 = Review of the bank's financial statements
by external auditors
6 = Compilation of the bank's financial statements
by external auditors
7 = Other audit procedures (excluding tax
preparation work)
8 = No external audit work
<FN>
(1) Includes total demand deposits and noninterest-
bearing time and savings deposits.
</TABLE>
7
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