<PAGE> 1
As filed with the Securities and Exchange Commission on February 3, 1998
REGISTRATION NO. 333-
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)
STUART A. 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/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed
Maximum Proposed
Offering Maximum
Title of Each Class of Securities Amount to be Price Aggregate Amount of
to be Registered Registered Per Unit Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Preferred Stock,
Depositary Shares, Debt
Securities and Warrants(1)............. (3) (3) $500,000,000(2) $147,500
================================================================================================================================
</TABLE>
(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.
<PAGE> 2
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 MAY ANY
OFFERS TO BUY 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 SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED FEBRUARY 3, 1998
LENNAR CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
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),
depositary shares representing shares of Preferred Stock ("Depositary Shares"),
Debt Securities (which may be issued in one or more series) or Warrants
entitling the holders to purchase Common Stock, Preferred Stock, Depositary
Shares or Debt Securities (together "Securities") at an aggregate initial
offering price which will not exceed $500,000,000. 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, and
may be described in a term sheet which precedes the Prospectus Supplement. A
Prospectus Supplement relating to a series of Preferred Stock will describe, to
the extent applicable, its title, the maximum number of shares, the 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 Depositary Shares
will describe, to the extent applicable, the fractional share of Preferred Stock
represented by each Depositary Share. A Prospectus Supplement relating to a
series of Debt Securities will describe, to the extent applicable, its title,
the maximum aggregate principal amount, its maturity, the interest rate (which
may be fixed or variable), the currency of payment, the 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 proposed amounts, if any, to be purchased by underwriters, and
the compensation, if any, of those underwriters or agents, 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
TO THE CONTRARY IS A CRIMINAL OFFENSE.
___________________
The date of this Prospectus is February __, 1998
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NO DEALER, SALESMAN OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE APPLICABLE PROSPECTUS SUPPLEMENT. 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 .......................... 3
THE COMPANY .............................................................. 4
USE OF PROCEEDS .......................................................... 4
RATIO OF EARNINGS TO FIXED CHARGES ....................................... 5
DESCRIPTION OF DEBT SECURITIES ........................................... 5
DESCRIPTION OF WARRANTS .................................................. 7
DESCRIPTION OF CAPITAL STOCK ............................................. 8
DESCRIPTION OF DEPOSITARY SHARES ......................................... 9
LEGAL MATTERS ............................................................ 11
EXPERTS .................................................................. 11
AVAILABLE INFORMATION
Lennar Corporation ("Lennar" or the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The reports, proxy statements 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 Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Regional Offices of
the Commission located at 7 World Trade Center, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such information also 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 Commission maintains a web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission. The Commission's web site can be
accessed at http://www.sec.gov. The Common Stock of the Company is listed on the
New York Stock Exchange. Reports,
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proxy statements and other information filed by the Company can be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with any amendments or supplements, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
of which this Prospectus is a part. This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement, which may
be inspected and copied at, or obtained from, the Commission or the New York
Stock Exchange in the manner described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company is the surviving corporation of a merger of Lennar and
Pacific Greystone Corporation ("Greystone") which became effective on October
31, 1997.
The following documents previously filed by Greystone with the
Commission under the File Number 1-11749 (unless otherwise indicated) are
incorporated by reference in this Prospectus:
(a) Greystone's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as amended by a Form 10-K/A dated September
26, 1997;
(b) Greystone's Quarterly Reports on Form 10-Q for the
calendar quarters ended March 31, 1997, as amended by a Form 10-Q/A
dated September 26, 1997, June 30, 1997, as amended by a Form 10-Q/A
dated September 26, 1997, and September 30, 1997;
(c) Greystone's Current Report on Form 8-K, dated June 17,
1997;
(d) Greystone's Registration Statement on Form S-4 under the
Securities Act, File Number 333-35671; and
(e) the description of Greystone's common stock contained in
Greystone's Registration Statement on Form 8-A, dated May 20, 1996.
The following documents previously filed by Lennar with the Commission
under the File Number 1-6643 are incorporated by reference in this Prospectus:
(a) Lennar's Annual Report on Form 10-K for the fiscal year
ended November 30, 1996 as amended by a Form 10-K/A dated September 26,
1997; and
(b) Lennar's Quarterly Reports on Form 10-Q for the quarters
ended February 28, 1997, May 31, 1997 and August 31, 1997.
The following documents previously filed by the Company with the
Commission under the File Number 1-11749 are incorporated by reference in this
Prospectus:
(a) the Company's Report on Form 8-K filed on November 17,
1997; and
(b) the Company's Report on Form 8-K filed on December 18,
1997.
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All documents and reports filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act 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 a
document incorporated or deemed to be incorporated by reference in this
Prospectus will be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in this Prospectus or in any
subsequently filed document which also is or is deemed to be incorporated by
reference in this Prospectus modifies or supersedes the statement in the earlier
document.
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).
THE COMPANY
The Company is engaged in homebuilding and related activities,
primarily in Florida, California, Texas, Arizona and Nevada. It is the surviving
corporation of a merger between Lennar Corporation and Pacific Greystone
Corporation, which became effective on October 31, 1997. Prior to October 31,
1997, Lennar also was engaged in real estate investment and management
activities. However, on October 31, 1997, Lennar distributed to its stockholders
all the shares of LNR Property Corporation, the parent of the group of Lennar
subsidiaries which conducted real estate investment and management activities.
Lennar Corporation and its predecessor had been building homes since
1954. The Company believes that since 1986, Lennar each year delivered more
homes in Florida than any other homebuilder. Lennar had been building homes in
Arizona since 1972. It began building homes in Texas in 1991 and in 1996 it
entered the California homebuilding market. By the time of the merger, Lennar
had constructed and sold over 130,000 homes.
Through financial services subsidiaries, Lennar provided (and the
Company continues to provide) conventional, FHA-insured and VA-guaranteed
mortgage loans to buyers of Lennar's homes and others from offices in Florida,
California, Arizona, Texas, North Carolina and Maryland. In 1996, loans to
buyers of Lennar's homes represented approximately one-third of Lennar's $527
million of residential loan originations. Lennar also arranged and provided (and
the Company continues to arrange and provide) title insurance for, and closing
services to, buyers of its homes and others. During 1996, Lennar formed a
subsidiary (which now is a subsidiary of the Company) to provide cable
television, alarm monitoring and telephone services to residents of Lennar
communities and possibly others.
Greystone was a regional builder of high quality, single family homes
primarily targeted to first-time and move-up homebuyers in infill and emerging
markets located throughout northern and southern California, as well as in the
Las Vegas and Phoenix areas. Greystone offered mortgage brokerage services
exclusively to its customers in most of its markets. It did not originate, fund
or service loans.
USE OF PROCEEDS
Except as may be set forth in the accompanying Prospectus Supplement,
the net proceeds from the sale of Securities will be applied by the Company for
general corporate purposes, which may include the repayment of indebtedness
outstanding from time to time, acquisitions and other general corporate
purposes.
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RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratios of earnings to fixed charges for the nine months
ended August 31, 1997 and for the years ended November 30, 1992 through 1996
(which are the historical amounts for Lennar before its merger with Pacific
Greystone and before the distribution to its stockholders of the subsidiaries
which conducted its real estate investment and management activities), were as
follows:
<TABLE>
<CAPTION>
Nine Months Ended Years Ended November 30,
---------------------------------------------------
August 31, 1997 1996 1995 1994 1993 1992
--------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1) 3.2x 3.7x 3.7x 3.8x 3.3x 2.1x
Ratio of earnings to fixed charges 3.3x 3.9x 4.2x 4.9x 4.9x 3.4x
(excluding limited purpose finance
subsidiaries)(1)
</TABLE>
(1) For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and cumulative effect
of changes in accounting principles plus "fixed charges." "Fixed
charges" consist of interest on all indebtedness (neither the Company
nor any of its subsidiaries has any material original issue discount or
capitalized lease obligations).
There was no Preferred Stock outstanding for any of the periods shown
above. Accordingly, the ratio of earnings to combined fixed charges and
Preferred Stock dividends is identical to the ratio of earnings to fixed
charges.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture")
dated as of December 31, 1997 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 direct, unsecured obligations of the
Company and will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. The Indenture does not limit the principal amount
of Debt Securities that may be issued. 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, the persons to whom interest will be payable, if other than the
registered holders on the record date 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
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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 Common 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) any index or
formula used to determine the required payments of principal, premium, if any,
or interest; (xi) 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; (xii) any special or modified Events of Default or covenants with
respect to the Debt Securities; and (xiii) 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.
Debt Securities may be issued at a discount from their stated principal
amount. Federal income tax considerations and other special considerations
applicable to a Debt Security issued with original issue discount may be
described in the Prospectus Supplement relating to that Debt Security.
If the principal of, premium, if any, or interest with regard to any
series of Debt Securities is payable in a foreign currency, any restrictions on
conversion, tax consideration or other material restrictions with respect to
that issue of Debt Securities will be described in the Prospectus Supplement
relating to those Debt Securities.
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.
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 a 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, which may be no
period) in payment of any installment of interest on the Series Debt; default by
the Company for 60 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 and accrued
interest, if any, on 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).
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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).
Any additional Events of Default with respect to any series of Debt
Securities, and any variations from the Events of Default described above, which
apply to any series of Debt Securities, will be described in a Prospectus
Supplement.
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 Debt Securities, 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 each holder of 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).
MERGERS AND OTHER TRANSACTIONS
The Company may not consolidate with or merge into any other
corporation, or transfer or lease its properties and assets substantially as an
entirety to another person unless (i) the corporation formed by the
consolidation or into which the Company is merged, or which acquires or leases
the properties and assets of the Company substantially as an entirety, assumes
by a supplemental indenture the Company's obligations with regard to outstanding
Debt Securities and the other covenants of the Company under the Indenture, and
(ii) immediately after giving effect to the transaction no Event of Default, and
no event which would become an Event of Default, will have occurred and be
continuing.
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.
GOVERNING LAW
The Indenture, each Supplemental Indenture, and the Debt Securities
will be governed by, and construed in accordance with, the laws of the State of
New York (Section 12.09).
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,
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Depositary Shares or units consisting of two or more of those types of
Securities); (ii) the exercise price of the Warrants (which 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; (v) the place or places where Warrants can be presented
for exercise or for registration of transfer or exchange; and (vi) any other
material terms of the Warrants.
DESCRIPTION OF CAPITAL STOCK
The Company'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 November 30,
1997, 43,227,081 shares of Common Stock and 9,936,631 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 the Company's Board of Directors. 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 participating 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. Holders of shares of Preferred Stock do not have preemptive
rights.
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 are not entitled to
cumulative votes in the election of Directors.
The transfer agent and registrar for the Common Stock is Boston
Equiserve L.P., Canton, Massachusetts.
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 (primarily close relatives of the Class B stockholder,
fiduciaries for the Class B stockholder or for close
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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, through two limited partnerships of which a corporation wholly-owned by
him is the sole general partner, 9,897,930 shares of Class B Common Stock, which
is 99.6% of the outstanding Class B Common Stock and 18.6% of the outstanding
common stock of both classes. Mr. Miller's Class B Common Stock gives him 69.4%
of the total votes which can be cast by the holders of both classes of Common
Stock. Even if Mr. Miller converted 4,581,558 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, unless otherwise stated in a particular Prospectus Supplement 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 as long as Mr. Miller's Class B Common Stock represents
at least 9.6% 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 9.93% of the
common stock of both classes.
DESCRIPTION OF DEPOSITARY SHARES
The Company may issue receipts ("Depositary Receipts") representing
fractional interests in shares of particular series of Preferred Stock
("Depositary Shares"). The Company will deposit the Preferred Stock of a series
which is the subject of Depositary Shares with a Depositary, which will hold
that Preferred Stock for the benefit of the holders of the Depositary Shares, in
accordance with a Deposit Agreement between the Company and the Depositary. The
holders of Depositary Shares will be entitled to all the rights and preferences
of the series of Preferred Stock to which the Depositary Shares relate,
including dividend, voting, conversion, redemption and liquidation rights, to
the extent of their interests in that Preferred Stock.
While the Deposit Agreement relating to a particular series of
Preferred Stock may have provisions applicable solely to that series of
Preferred Stock, all Deposit Agreements relating to Preferred Stock issued by
the Company will include the following provisions:
Dividends and Other Distributions. Each time the Company pays a cash
dividend or makes any other type of cash distribution with regard to Preferred
Stock of a series, the Depositary will distribute to the holder of record of
each Depositary Share relating to that series of Preferred Stock an amount equal
to the total dividend or other distribution received by the Depositary on the
Preferred Stock of the series held by it divided
9
<PAGE> 11
by the total number of outstanding Depositary Shares relating to the series
(which will be the same fraction of the dividend or other distribution paid per
share of Preferred Stock that each Depositary Share is of a share of Preferred
Stock). If there is a distribution of property other than cash, the Depositary
either will distribute the property to the record holders of Depositary Shares
in proportion to the Depositary Shares held by each of them, or the Depositary
will, with the approval of the Company, sell the property and distribute the net
proceeds from the sale to the record holders of the Depositary Shares in
proportion to the Depositary Shares held by them.
Withdrawal of Preferred Stock. A holder of Depositary Shares will be
entitled to receive, upon surrender of Depositary Receipts representing
Depositary Shares, the number of whole or fractional shares of the applicable
series of Preferred Stock, and any money or other property, to which the
Depositary Shares relate.
Redemption of Depositary Shares. Whenever the Company redeems shares of
Preferred Stock held by a Depositary, the Depositary will be required to redeem,
on the same redemption date, Depositary Shares constituting, in total, the
number of shares of Preferred Stock held by the Depositary which are redeemed,
subject to the Depositary's receiving the redemption price of those shares of
Preferred Stock. If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected pro rata or by another method
determined by the Company to be equitable.
Voting. Any time the Company sends the holders of a series of Preferred
Stock to which Depositary Shares relate a notice of meeting or other materials
relating to a meeting of the holders of that series of Preferred Stock, the
Company will provide the Depositary with sufficient copies of those materials so
they can be sent to all holders of record of the applicable Depositary Shares on
the record date for the meeting, and the Depositary will send those materials to
the holders of record of the Depositary Shares on that record date. The
Depositary will solicit voting instructions from holders of Depositary Shares
and will vote or not vote the Preferred Stock to which the Depositary Shares
relate in accordance with those instructions.
Liquidation Preference. Upon liquidation, dissolution or winding up of
the Company, the holder of each Depositary Share will be entitled to a fraction
of the sum distributed to the holder of a share of the applicable series of
Preferred Stock equal to the fraction of a share of that Preferred Stock
represented by the Depositary Share.
Conversion. If shares of a series of Preferred Stock are convertible
into Common Stock or other securities or property of the Company, holders of
Depositary Shares relating to that series of Preferred Stock will, if they
surrender Depositary Receipts representing Depositary Shares and appropriate
instructions to convert them, receive the shares of Common Stock or other
securities or property into which the number of shares (or fractions of shares)
of Preferred Stock to which the Depositary Shares relate could at the time be
converted.
Amendment and Termination of a Deposit Agreement. A Deposit Agreement
may be amended by the Company and the Depositary, except that an amendment which
materially and adversely affects the rights of holders of Depositary Shares or
would be materially and adversely inconsistent with the rights granted to the
holders of the Preferred Stock to which they relate, must be approved by holders
of at least two-thirds of the outstanding Depositary Shares. No amendment will
impair the right of a holder of Depositary Shares to surrender the Depositary
Receipts evidencing those Depositary Shares and receive the Preferred Stock to
which they relate, except as required to comply with law. A Deposit Agreement
may be terminated by the Company with the consent of holders of a majority of
the Depositary Shares to which it relates. Upon termination of a Deposit
Agreement, the Depositary will make the whole or fractional shares of Preferred
Stock to which the Depositary Shares issued under the Deposit Agreement relate
available to the holders of those Depositary Shares. A Deposit Agreement will
automatically terminate if (i) all outstanding Depositary Shares to which it
relates have been redeemed or converted or (ii) a final distribution upon
liquidation, dissolution or winding up of the Company has been made to the
holders of the Depositary Shares issued under the Deposit Agreement.
10
<PAGE> 12
Miscellaneous. There will be provisions (i) requiring the Depositary to
forward to holders of record of Depositary Shares any reports or communications
from the Company which are received by the Depositary with respect to the
Preferred Stock to which the Depositary Shares relate, (ii) regarding
compensation of the Depositary, (iii) regarding resignation of the Depositary,
(iv) limiting the liability of the Company and the Depositary under the Deposit
Agreement (usually to failure to act in good faith, gross negligence or wilful
misconduct) and (v) indemnifying the Depositary against certain possible
liabilities.
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 the related financial
statement schedules of Lennar Corporation and subsidiaries incorporated by
reference herein and elsewhere in the Registration Statement from Lennar's
Annual Report on Form 10-K for the fiscal year ended November 30, 1996, as
amended by a Form 10-K/A dated September 26, 1997, have been audited by Deloitte
& Touche LLP, independent auditors, as stated in their reports, which are
incorporated by reference herein, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
The consolidated financial statements of Pacific Greystone Corporation
appearing in Pacific Greystone Corporation's Annual Report, as amended, (Form
10-K/A) for the year ended December 31, 1996, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
11
<PAGE> 13
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:
<TABLE>
<S> <C>
Registration fee-- Securities and Exchange Commission........................ $147,500
Accounting fees and expenses................................................. 7,500(a)
Legal fees and expenses...................................................... 10,000(a)
Trustees' fees and expenses.................................................. 5,000(a)
Miscellaneous................................................................ 6,000
--------
Total........................................................................ $176,000
========
</TABLE>
- ----------------
(a) Does not include expenses of preparing prospectus supplements and other
expenses relating to offerings of particular securities.
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
2(a). Restated Certificate of Incorporation of the Company --
incorporated by reference to the Company's Form 8-K, file
number 1-11749, dated November 17, 1997.
2(b). By-laws of the Company -- incorporated by reference to the
Company's Form 8-K, file number 1-11749, dated November 17,
1997.
4. Form of Indenture
5. Opinion of Counsel
12. Statements of computation of ratios of earnings to fixed
charges
23. Consents
(i) Rogers & Wells (counsel)--included in Exhibit 5
(ii) Deloitte & Touche LLP (accountants)
(iii) Ernst & Young LLP (accountants)
25. Statement of Eligibility and Qualification on Form T-1 of
Trustee under the Indenture.
II-1
<PAGE> 14
ITEM 17. UNDERTAKINGS
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment will be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time will 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement will be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
(5) That, (i) for purposes of determining any liability under
the Securities Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective and (ii) for the
purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus 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.
II-2
<PAGE> 15
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of counsel for the Company 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 Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 16
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 February 3, 1998.
LENNAR CORPORATION
By:/s/ Stuart A. Miller
------------------------------------
Stuart A. Miller
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stuart A. Miller, Bruce Gross and Diane
J. Bessette and each of them, as his or her true and lawful attorney-in-fact and
agent, with sole power of substitution, to sign for him and in his or her 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.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
President and February 3, 1998
Director (Principal
/s/ Stuart A. Miller Executive Officer)
- -----------------------------------------
Stuart A. Miller
Vice President-Finance February 3, 1998
/s/ Bruce Gross (Principal Financial Officer)
- -----------------------------------------
Bruce Gross
Controller (Principal February 3, 1998
/s/ Diane J. Bessette Accounting Officer)
- -----------------------------------------
Diane J. Bessette
Director February __, 1998
- -----------------------------------------
Charles I. Babcock
/s/ Sid Lapidus Director February __, 1998
- -----------------------------------------
Sid Lapidus
</TABLE>
S-1
<PAGE> 17
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
Director February __, 1998
- -----------------------------------------
Irving Bolotin
Director February __, 1998
- -----------------------------------------
Jonathan Jaffe
/s/ Reuben S. Leibowitz Director February 3, 1998
- -----------------------------------------
Reuben S. Leibowitz
/s/ Leonard Miller Director February 3, 1998
- -----------------------------------------
Leonard Miller
Director February __, 1998
- -----------------------------------------
Arnold P. Rosen
/s/ Steven J. Saiontz Director February 3, 1998
- -----------------------------------------
Steven J. Saiontz
</TABLE>
S-2
<PAGE> 18
EXHIBIT INDEX
2(a). Restated Certificate of Incorporation of the Company --
incorporated by reference to the Company's Form 8-K, file
number 1-11749, dated November 17, 1997.
2(b). By-laws of the Company -- incorporated by reference to the
Company's Form 8-K, file number 1-11749, dated November 17,
1997.
4. Form of Indenture
5. Opinion of Counsel
12. Statements of computation of ratios of earnings to fixed
charges
23. Consents
(i) Rogers & Wells (counsel)--included in Exhibit 5
(ii) Deloitte & Touche LLP (accountants)
(iii) Ernst & Young LLP (accountants)
25. Statement of Eligibility and Qualification on Form T-1 of
Trustee under the Indenture.
<PAGE> 1
Exhibit 4
-----------------------------------------------------------------------
-----------------------------------------------------------------------
LENNAR CORPORATION,
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
----------------------
INDENTURE
DATED AS OF DECEMBER 31, 1997
----------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture
- --------------- ---------
<S> <C>
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
</TABLE>
- -------
N.A. means Not Applicable
A-3
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
SECTION 6.04. Waiver of Existing Defaults........................................................... 17
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
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................................................... 29
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. ..................................................................................... 30
ARTICLE ELEVEN. SINKING OR PURCHASE FUNDS..................................................................... 31
SECTION 11.01. Provisions Relating to Sinking or
Purchase Funds.......................................................... 31
ARTICLE TWELVE. MISCELLANEOUS................................................................................. 31
SECTION 12.01. Trust Indenture Act Controls......................................................... 31
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 12.02 Supplemental Indentures Contract..................................................... 31
SECTION 12.03. Notices.............................................................................. 31
SECTION 12.04. Communication by Holders with Other
Holders................................................................. 32
SECTION 12.05. Certificate and Opinion as to
Conditions Precedent.................................................... 32
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........................................................................... 34
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
</TABLE>
iii
<PAGE> 6
INDENTURE, dated as of December 31, 1997, 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 $.10 per
share, of the Company, as that stock may be reconstituted from time to time,
except that "Common Stock" will not include the Company's Class B Common Stock.
"Company" means the Person named as such in this Indenture
until a successor replaces it and after that means the successor.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business is
principally administered (which at the date of this Indenture is at the location
set forth in the first paragraph of this Indenture).
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"Corporation" includes corporations, associations, companies
and business trusts.
"Custodian" has the meaning provided in Section 6.01.
"Default" means any event which, upon the giving of notice or
passage of time, or both, would be an Event of Default.
"$" 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.
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"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.
"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:
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"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture securityholder" means a Holder;
"indenture to be qualified" means this Indenture;
"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.
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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:
(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
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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.
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
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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.
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 Article 8 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,
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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 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 protected purchaser (in which
case the replaced Security will be treated as outstanding to the extent
permitted by Section 8-210 of the New York Uniform Commercial Code).
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
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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 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.
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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.
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
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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 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
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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 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.
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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 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 Section 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 Section
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
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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 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:
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(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 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 60 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
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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 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
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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.
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
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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 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.
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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 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,
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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
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
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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.
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.
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(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 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.
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(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.
(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.
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SECTION 7.06. Reports by Trustee. Within 60 days after each May 15 beginning
with the May 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 2.07, a brief report dated as of that May 15
which complies with TIA Section 313(a). The Trustee also will comply with TIA
Section 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
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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.
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
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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.
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 Section 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 Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9).
SECTION 7.11. Preferential Collection of Claims. The Trustee will comply with
TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed will be subject to TIA
Section 311(a) to the extent indicated.
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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
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:
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(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 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.
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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, 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;
29
<PAGE> 35
(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.
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.
30
<PAGE> 36
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
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
31
<PAGE> 37
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 Section 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.
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
32
<PAGE> 38
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 Section 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 Section 312(c).
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,
33
<PAGE> 39
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 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
34
<PAGE> 40
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.
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
35
<PAGE> 41
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: /s/ Stuart Miller
------------------------
Stuart Miller
President
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ John R. Prendiville
--------------------------
Name: John R. Prendiville
Title: Vice President
36
<PAGE> 42
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> 1
EXHIBIT 5
February 3, 1998
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
depositary shares representing shares of Preferred Stock ("Depositary Shares"),
(iv) its debt securities (which may be issued in one or more series) to be
issued under an Indenture (the "Indenture") dated as of December 31, 1997
between the Company and The First National Bank of Chicago and supplemental
indentures executed as contemplated by the Indenture ("Debt Securities") and
(v) warrants entitling the holders to purchase Common Stock, Preferred Stock,
Depositary Shares or Debt Securities ("Warrants") (collectively, the Common
Stock, Preferred Stock, Depositary Shares, Debt Securities and Warrants are the
"Securities") at an aggregate initial offering price which will not exceed
$500,000,000, which offering is the subject of a registration statement under
the Securities Act of 1933, as amended (the "Registration Statement") being
filed by the Company. In that capacity, we are familiar with the contemplated
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:
<PAGE> 2
Lennar Corporation 2 February 3, 1998
1. When the Board of Directors of the Company authorizes the
issuance of authorized but unissued 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, that 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 in accordance with
the provisions of the Company's Certificate of Incorporation relating to the
issuance 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 legally
issued, fully paid and non-assessable.
3. When the Board of Directors of the Company authorizes the
creation and sale of Depositary Shares representing fractional interests in
shares of particular series of Preferred Stock and in accordance with that
authorization those Depositary Shares are (i) sold for at least the par value of
the Preferred Stock as contemplated in the Registration Statement or (ii) issued
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 exercise) as
contemplated by the Registration Statement, those Depositary Shares will be
legally issued, fully paid and non-assessable.
4. 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.
5. 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
<PAGE> 3
Lennar Corporation 3 February 3, 1998
Warrants are issued as contemplated in the Registration Statement, those
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,
/s/ Rogers & Wells
<PAGE> 1
EXHIBIT 12
COMPUTATION OF EARNINGS TO FIXED CHARGES
(EXCLUDING LIMITED-PURPOSE FINANCE SUBSIDIARIES)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED FISCAL YEARS ENDED NOVEMBER 30,
AUGUST 31, AUGUST 31, -------------------------------------------------
---------- ----------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
EARNINGS:
<S> <C> <C> <C> <C> <C> <C> <C>
Pre-tax income $114,282 97,345 144,239 115,455 111,746 82,054 45,363
Adjustments to pre-tax income:
Fixed charges $ 47,900 38,200 50,100 35,800 25,000 19,700 16,800
Interest capitalized $(23,800) (16,700) (24,900) (23,400) (22,100) (17,100) (15,000)
Adjustment for undistributed earnings
and losses of unconsolidated 50% or
less owned entities $ 3,700 2,400 7,000 4,300 (8,700) (700) (300)
Previously capitalized interest amortized $ 16,100 13,600 20,900 17,800 15,400 13,100 9,500
-------- ------ ------ -------- -------- -------- --------
"Earnings" $158,182 134,845 197,339 149,955 121,346 97,054 56,363
======== ======= ======= ======= ======= ======= =======
FIXED CHARGES:
Interest, whether capitalized, and
amortization of debt discounts or premiums
Interest incurred (all of Lennar and
Lennar Financial Services interest) $ 47,900 38,200 50,100 35,800 25,000 19,700 16,800
-------- ------ ------ ------- ------- ------- -------
"Fixed charges" $ 47,900 38,200 50,100 35,800 25,000 19,700 16,800
======== ====== ====== ======= ======= ======= =======
EARNINGS TO FIXED CHARGES
EXCLUDING LIMITED-PURPOSE
FINANCE SUBSIDIARIES 3.3 3.5 3.9 4.2 4.9 4.9 3.4
</TABLE>
<PAGE> 1
Exhibit 23(ii)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Lennar Corporation
We consent to the incorporation by reference in this Registration Statement of
Lennar Corporation on Form S-3 to our reports dated January 16, 1997, appearing
in the Annual Report on Form 10-K, as amended by Form 10- K/A dated September
26, 1997, of Lennar Corporation for the year ended November 30, 1996 and to the
reference to our firm under the heading "Experts" in the Prospectus, which is a
part of this Registration Statement.
DELOITTE & TOUCHE LLP
Miami, Florida
February 2, 1998
2
<PAGE> 1
Exhibit 23(iii)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Lennar Corporation
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated January 24, 1996, with respect to the financial
statements of Pacific Greystone Corporation incorporated by reference in the
Registration Statement on Form S-3 of Lennar Corporation for the registration of
up to $500,000,000 of Common Stock, Preferred Stock, Depository Shares, Debt
Securities, and Warrants.
ERNST & YOUNG LLP
Los Angeles, California
February 2, 1998
3
<PAGE> 1
Exhibit 25
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 NORTHWEST 107TH AVENUE
MIAMI, FLORIDA 33172
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the 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.
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.
2
<PAGE> 3
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 the State of Illinois, on this 29th day of December , 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 29, 1997
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/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
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
RC-A):
a. Noninterest-bearing balances and currency and coin(1).......... 0081 4,499,157 1.a.
b. Interest-bearing balances(2)................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)............................................................. RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 419,216 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 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)............................... 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases).......... 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 614,921 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 277,105 10.
11. Other assets (from Schedule RC-F)................................. 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11).......................... 2170 56,108,875 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1).................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing.......................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)... RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing....................... RCFN 6631 352,399 13.b.1
(2) Interest-bearing.......................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)............................................. RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less...................................... RCFD 2332 2,608,057 16.a
b. With a remaining maturity of than one year through three years..................... A547 379,893 16.b
c. With a remaining maturity of more than three years ................................ A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding................................ RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)............ RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)........... RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20)... RCFD 2948 51,718,600 21
22. Not applicable
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 2,989,408 25
26. a. Undivided profits and capital reserves........ RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments.................................... RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)...................................... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28).......................... RCFD 3300 56,108,875 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 Number
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . .RCFD 6724 N/A M.1
</TABLE>
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 work 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
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
