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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): FEBRUARY 19, 1999
LENNAR CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 1-11749 59-1281887
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File No.) Identification No.)
700 NORTHWEST 107TH AVENUE, MIAMI, FLORIDA 33172
(Address of Principal Executive Office) (Zip Code)
Registrant's Telephone Number, Including Area Code: (305) 559-4000
NOT APPLICABLE
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
Lennar Corporation has offered $282,000,000 aggregate principal amount
of its 7 5/8% Senior Notes due 2009 (the "Notes") in an underwritten public
offering through the several underwriters (the "Underwriters") listed on
Schedule I to the Underwriting Agreement which is filed as Exhibit 1.1 to this
Report. The Notes are being issued pursuant to an Indenture dated December 31,
1997 and a Second Supplemental Indenture dated February 24, 1999. The form of
the Second Supplemental Indenture is filed as Exhibit 4.1 to this Report.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
1.1 Underwriting Agreement dated February 19, 1999 by and between
the Company and the Underwriters named therein.
4.1 Form of Second Supplemental Indenture dated February 24, 1999
between the Company and the Trustee.
23.1 Consent of Deloitte & Touche LLP
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LENNAR CORPORATION
By:/s/ Stuart A. Miller
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Stuart A. Miller
President
Date: February 23, 1999
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EXHIBIT INDEX
EXHIBIT
1.1 Underwriting Agreement dated February 19, 1999 by and between
the Company and the Underwriters named therein
4.1 Form of Second Supplemental Indenture dated February 24, 1999
between the Company and the Trustee
23.1 Consent of Deloitte & Touche LLP
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LENNAR CORPORATION
$282,000,000
7 5/8% Senior Notes Due 2009
UNDERWRITING AGREEMENT
February 19, 1999
BT Alex. Brown Incorporated
Salomon Smith Barney Inc.
Warburg Dillon Read LLC
First Chicago Capital Markets, Inc.
c/o BT Alex. Brown Incorporated
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Ladies and Gentlemen:
Lennar Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to you (together, the "Underwriters"), severally and not jointly,
$282,000,000 aggregate principal amount of the Company's 7 5/8% Senior Notes Due
2009 (the "Securities"). The respective principal amounts of the Securities to
be so purchased by the several Underwriters are set forth opposite your names in
Schedule I hereto. The Securities are to be issued under an Indenture dated as
of December 31, 1997 (the "Base Indenture") between the Company and First
National Bank of Chicago, as trustee (the "Trustee"), as supplemented by a
Supplemental Indenture to be dated as of February 24, 1999 (the "Supplemental
Indenture"). The Base Indenture as supplemented by the Supplemental Indenture is
referred to herein as the "Indenture".
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the
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Underwriters as follows:
(a) A registration statement on Form S-3 (File No. 333-45527),
including a basic prospectus relating to certain debt and equity securities to
be offered from time to time by the Company and a registration statement filed
pursuant to Rule 462(b) of the Securities Act of 1933, as amended (the "Act"),
have been prepared by the Company in conformity with the requirements of the
Act, and the Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and have been
filed with the Commission. The Company has complied with the conditions for the
use of Form S-3. Copies of such registration statements, including any
amendments thereto, the preliminary prospectuses (meeting the requirements of
the Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, as well as copies of
any Preliminary Prospectuses (as defined below), have heretofore been delivered
by the Company to you. Such registration statements, which are herein
collectively referred to as the "Registration Statement," have become effective
under the Act and no post-effective amendment to the Registration Statement has
been filed as of the date of this Agreement. The Company has filed with the
Commission pursuant to Rule 424(b) a preliminary supplement to the basic
prospectus included in the Registration Statement and will hereafter file with
the Commission pursuant to Rule 424(b) a final supplement to such basic
prospectus, in each case relating to the Securities and the offering thereof.
"Basic Prospectus" means the prospectus included in the Registration Statement
at the time it became effective under the Act. "Prospectus" means the Basic
Prospectus, together with the final prospectus supplement relating to the
Securities first filed with the Commission pursuant to Rule 424(b). Each
preliminary prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to the filing of the
Prospectus with the Commission, together with the Basic Prospectus, is herein
referred to as a "Preliminary Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or to
the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein, and, in the case of any reference herein to
any Prospectus, also shall be deemed to include any documents incorporated by
reference therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rule 424(b) or 430A,
and prior to
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the termination of the offering of the Securities by the Underwriters.
(b) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate or other power and authority to own or lease its
properties and conduct its business as described in the Registration Statement.
Each of the Subsidiaries (as defined below) and the Land Partnership (as defined
below) has been duly organized and is validly existing as a corporation or
partnership, as applicable, in good standing under the laws of the jurisdiction
of its incorporation or formation, with corporate or other power and authority
to own or lease its properties and conduct its business as described in the
Registration Statement. The Company, each of the Subsidiaries and the Land
Partnership are duly qualified to transact business in all jurisdictions in
which the conduct of their business requires such qualification, except where
the failure to be so qualified would not, individually or in the aggregate, have
a material adverse effect on the condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole or the business, management,
properties, assets, rights, operations or prospects of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect"). The Subsidiaries
listed on Exhibit 21 to the Company's Annual Report on Form 10-K for the year
ended November 30, 1997 constitute all the Subsidiaries at November 30, 1997
other than Subsidiaries that, if considered in the aggregate as a single
subsidiary, would not have constituted a "significant subsidiary" of the Company
at that date, within the meaning of Rule 1-02(w) of the Commission's Regulation
S-X. There are no "significant subsidiaries" of the Company other than the
Designated Subsidiaries (as defined below), and, at the date of this Agreement,
the Subsidiaries other than the Designated Subsidiaries, if considered in the
aggregate as a single subsidiary, would not constitute a "significant
subsidiary" of the Company. The outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Company or another Subsidiary free and
clear of all liens, encumbrances and equities and claims (except for the pledge
of the shares of certain of the direct and indirect subsidiaries of Lennar
Financial Services, Inc. ("LFS") to the lenders under LFS's credit agreement);
and no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into shares of
capital stock or ownership
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interests in the Subsidiaries or the Land Partnership are outstanding. The
Company indirectly owns a 50% interest in Lennar Land Partners, a Florida
general partnership (the "Land Partnership"). Such interest in the Land
Partnership has been duly authorized and validly issued and is owned by a
Subsidiary indirectly wholly owned by the Company, free and clear of all liens,
encumbrances and equities and claims. For purposes of this Agreement, a
"Subsidiary" means a direct or indirect "subsidiary" of the Company, as such
term is defined in Rule 405 under the Act. For purposes of this Agreement, the
following Subsidiaries are "Designated Subsidiaries": Lennar Homes, Inc., Lennar
Homes of Arizona, Inc., Lennar Homes of California, Inc., Lennar Homes of Texas
Land and Constructions Ltd., Lennar Homes of Texas Sales and Marketing, Ltd.,
Lennar Texas Holding Company., Lennar Management, Inc., Greystone Homes, Inc.,
Universal American Mortgage Company, UAMC Asset Corp. and LFS.
(c) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct as of its date. The
outstanding shares of the Company's Common Stock, par value $0.10 per share
("Common Stock") and the Company's Class B Common Stock, par value $.10 per
share ("Class B Common Stock"), have been duly authorized and validly issued and
are fully paid and non-assessable; and no preemptive rights of stockholders
exist with respect to the capital stock or any other securities of the Company
or the issue and sale thereof. Neither the filing of the Registration Statement
nor the offering or sale of the Securities as contemplated by this Agreement
gives rise to any rights, other than those which have been waived or satisfied,
for or relating to the registration of securities of the Company.
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under the
Securities. The Securities, when issued, will be in the form contemplated by the
Indenture. The Securities have each been duly and validly authorized by the
Company and, when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement, will have been
duly executed, issued and delivered and will constitute valid and legally
binding obligations of the Company (assuming the due authorization, execution
and delivery of the Indenture by the Trustee and the due authorization and
delivery of the Securities by the Trustee in accordance with the Indenture),
entitled to the benefits of
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the Indenture, and enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, and
(ii) general principles of equity and the discretion of the court before which
any proceeding therefor may be brought (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(e) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Indenture.
The Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). The Indenture has been duly and validly
authorized by the Company, and the Base Indenture (assuming the due
authorization, execution and delivery by the Trustee) has been duly executed and
delivered and constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforcement is considered in
a proceeding in equity or at law). When the Supplemental Indenture is executed
and delivered by the Company (assuming the due authorization, execution and
delivery by the Trustee), the Supplemental Indenture will have been duly
executed and delivered and the Indenture will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(f) Each of the Indenture and the Securities conforms in all
material respects to the description thereof in the Prospectus as supplemented
or amended.
(g) The Company has all requisite corporate power and
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authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. This Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly and validly authorized by the Company. This Agreement has been duly
executed and delivered by the Company.
(h) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Securities nor instituted proceedings for that purpose. The Registration
Statement complies, and the Prospectus and any amendments or supplements thereto
will comply, in all material respects, with the requirements of the Act and the
Rules and Regulations and the Trust Indenture Act. The documents incorporated by
reference in the Prospectus, at the time filed with the Commission complied, in
all material respects with the requirements of the Securities Exchange Act of
1934 (the "Exchange Act") or the Act, as applicable, and the rules and
regulations of the Commission thereunder. The Registration Statement and any
amendment thereto do not contain, and will not contain, any untrue statement of
a material fact and do not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements thereto do not
contain, and will not contain, any untrue statement of material fact; and do not
omit, and will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
specifically for use in the preparation thereof.
(i) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules, as incorporated by
reference in the Prospectus, present fairly the financial position and the
results of operations and cash flows of the Company and the consolidated
Subsidiaries, at the indicated dates and for the indicated periods. Such
financial statements and related schedules have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout the
periods involved, except as disclosed
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therein, and all adjustments necessary for a fair presentation of results for
such periods have been made. The summary financial and statistical data included
or incorporated by reference in the Prospectus presents fairly the information
shown therein and such data has been compiled on a basis consistent with the
financial statements presented therein and the books and records of the Company.
The pro forma financial statements and other pro forma financial information
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements, have been properly compiled on the pro forma bases
described therein, and, in the opinion of the Company, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(j) Each of Deloitte & Touche LLP and Ernst & Young LLP, who
have certified certain of the financial statements filed with the Commission and
incorporated by reference in the Registration Statement and the Prospectus, is
an independent public accountant as required by the Act and the Rules and
Regulations.
(k) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company, any of the
Subsidiaries or the Land Partnership before any court or administrative agency
or otherwise which if determined adversely to the Company, any of its
Subsidiaries or the Land Partnership might result in any material adverse change
in the earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole or might prevent the consummation of the
transactions contemplated hereby, except as set forth in the Prospectus.
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(l) The Company, the Subsidiaries and the Land Partnership
have good and marketable title to all of the properties and assets reflected in
the financial statements (or as described in the Registration Statement or the
Prospectus) hereinabove described, subject to no lien, mortgage, pledge, charge
or encumbrance of any kind except those reflected in such financial statements
(or as described in the Registration Statement or the Prospectus) or which are
not material in amount. The Company and the Subsidiaries occupy their leased
properties under valid and binding leases or oral lease arrangements conforming
in all material respects to the description thereof, if any, set forth or
incorporated by reference in the Registration Statement or the Prospectus.
(m) The Company, the Subsidiaries and the Land Partnership
have timely filed all Federal, State, local and foreign tax returns which have
been required to be filed (taking into account any applicable extensions) and
have paid all taxes indicated by said returns and all assessments received by
them or any of them to the extent that such taxes have become due and are not
being contested in good faith and for which an adequate reserve for accrual has
been established in accordance with generally accepted accounting principles.
All tax liabilities of the Company and the Subsidiaries have been adequately
provided for in the consolidated financial statements of the Company, and the
Company does not know of any actual or proposed additional material tax
assessments.
(n) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, as it has been amended
or supplemented, there has not been any material adverse change or any
development involving a prospective material adverse change in or otherwise
materially affecting the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise), or prospects of the
Company and its Subsidiaries taken as a whole, whether or not occurring in the
ordinary course of business, and there has not been any material transaction
entered into or any material transaction that is probable of being entered into
by the Company, the Subsidiaries or the Land Partnership, other than
transactions in the ordinary course of business and changes and transactions
described in the Prospectus, as it has been amended or supplemented. The Company
and the Subsidiaries have no material contingent obligations which are not
disclosed in the Company's financial statements which are incorporated by
reference in the Prospectus.
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(o) Neither the Company, any of the Subsidiaries nor the Land
Partnership is or with the giving of notice or lapse of time or both, will be,
in violation of or in default under its Charter or By-Laws or other comparable
documents or under any agreement, lease, contract, indenture or other instrument
or obligation to which it is a party or by which it, or any of its properties,
is bound, which default is of material significance in respect of the condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole or
the business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the Subsidiaries taken
as a whole. The execution and delivery of this Agreement, the Indenture and the
Securities and the consummation of the transactions herein and therein
contemplated and the fulfillment of the terms hereof and thereof will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under (or an event which with the giving of notice or lapse
of time or both would constitute a default under), or result in the imposition
or creation of (or the obligation to create or impose) a lien on any property or
assets of the Company, any Subsidiary or the Land Partnership with respect to,
any indenture, mortgage, deed of trust or other agreement or instrument to which
the Company, any Subsidiary or the Land Partnership is a party, or of the
Charter or By-Laws or other comparable documents of the Company, any Subsidiary
or the Land Partnership or any order, rule or regulation applicable to the
Company, any Subsidiary or the Land Partnership of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction.
(p) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement, the Indenture and the Securities and the consummation
of the transactions herein and therein contemplated (except such additional
steps as may be required by the Commission, the National Association of
Securities Dealers, Inc. (the "NASD") or such additional steps as may be
necessary to qualify the Securities for public offering by the Underwriters
under state securities or Blue Sky laws) has been obtained or made and is in
full force and effect.
(q) Each of the Company, the Subsidiaries and the Land
Partnership holds all material licenses, certificates and permits
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(collectively, "Permits") from governmental authorities which are necessary to
the conduct of its businesses, and has fulfilled and performed in all material
respects its obligations with respect to the Permits; and neither the Company
nor any of the Subsidiaries has infringed any patents, patent rights, trade
names, trademarks or copyrights, which infringement is material to the business
of the Company and the Subsidiaries taken as a whole. The Company knows of no
material infringement by others of patents, patent rights, trade names,
trademarks or copyrights owned by or licensed to the Company or any of the
Subsidiaries.
(r) Neither the Company, nor to the Company's knowledge, any
of its affiliates, has taken or will take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the Securities to facilitate the sale or resale of the Securities. The
Company acknowledges that the Underwriters may engage in stabilizing
transactions in the Securities in accordance with Regulation M under the
Exchange Act.
(s) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940, as amended (the "Investment Company Act") and the rules and regulations of
the Commission thereunder.
(t) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(u) Neither the Company nor any of the Subsidiaries nor any
agent acting on their behalf has taken or will take any action that might cause
this Agreement or the sale of the Securities to violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System, in each case as in effect,
or as the same may hereafter be in effect, on the Closing Date.
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(v) Except as described in the Prospectus or as would not have
a Material Adverse Effect, (i) each of the Company, the Subsidiaries and the
Land Partnership is in compliance with and not subject to liability under
applicable Environmental Laws (as defined below), (ii) each of the Company, the
Subsidiaries and the Land Partnership has made all filings and provided all
notices required under any applicable Environmental Law, and has and is in
compliance with all Permits required under any applicable Environmental Laws and
each of them is in full force and effect, (iii) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for information
pending or, to the knowledge of the Company, threatened against the Company, any
Subsidiary or the Land Partnership under any Environmental Law, (iv) no lien,
charge, encumbrance or restriction has been recorded under any Environmental Law
with respect to any assets, facility or property owned, operated, leased or
controlled by the Company, any Subsidiary or the Land Partnership, (v) neither
the Company, any Subsidiary nor the Land Partnership has received notice that it
has been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable state law and (vi) no property or facility of the
Company or any Subsidiary or the Land Partnership is (A) listed or, to the
knowledge of the Company, proposed for listing on the National Priorities List
under CERCLA or (B) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to CERCLA,
or on any comparable list maintained by any state or local governmental
authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and aboveground storage tanks, and related piping, and emissions, discharges,
releases or
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threatened releases therefrom.
(w) There is no strike, labor dispute, slowdown or work
stoppage with the employees of the Company, the Subsidiaries or the Land
Partnership which is pending or, to the knowledge of the Company, threatened,
which would have a Material Adverse Effect.
(x) The Company, its Subsidiaries and the Land Partnership
carry, or are covered by, insurance in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in similar
industries.
(y) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(z) To the best of the Company's knowledge, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater security holders, except as set
forth in the Registration Statement.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to each Underwriter and each Underwriter agrees,
severally and not jointly, to purchase the aggregate principal amount of
Securities set forth opposite the name of each Underwriter in Schedule I hereof,
subject to adjustments in accordance with Section 9 hereof, at a
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purchase price of 98.54% of such aggregate principal amount.
(b) Payment for the Securities to be sold hereunder is to be
made by wire transfer of Federal (same day) funds to the order of the Company
against delivery of certificates therefor to the Underwriters. Such payment and
delivery are to be made through the facilities of The Depository Trust Company,
New York, New York at 10:00 a.m., New York time, on the third business day after
the date of this Agreement (or, if the Underwriters determine the price of the
Securities after 4:30 p.m., New York time, on the date hereof, the fourth
business day) or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and are not permitted by law or
executive order to be closed.) The certificates for the Securities in definitive
form will be delivered in such denominations and in such registrations as the
Underwriters request in writing not later than the second full business day
prior to the Closing Date, and will be made available for inspection by the
Underwriters at least one business day prior to the Closing Date.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a
public offering of the Securities as soon as the Underwriters deem it advisable
to do so. The Securities are to be initially offered to the public at the
initial public offering price set forth in the Prospectus. The Underwriters may
from time to time thereafter change the public offering price and other selling
terms.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the several Underwriters
that:
(a) The Company will (A) use its best efforts to prepare and
timely file with the Commission under Rule 424(b) of the Rules and Regulations a
Prospectus in a form approved by the Underwriters, and (B) not file any
amendment to the Registration Statement or supplement to the Prospectus or
document incorporated by reference therein of which the Underwriters shall not
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previously have been advised and furnished with a copy or to which the
Underwriters shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations and (C) file on a timely basis all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the Prospectus and
prior to the termination of the offering of the Securities by the Underwriters.
(b) The Company will advise the Underwriters promptly (A) when
any post-effective amendment to the Registration Statement shall have become
effective, (B) of receipt of any comments from the Commission relating to the
Registration Statement, the Prospectus or any documents incorporated by
reference therein, (C) of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any additional
information, and (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use of the
Prospectus or of the institution of any proceedings for that purpose. The
Company will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters in
endeavoring to qualify the Securities for sale under the securities laws of such
jurisdictions as the Underwriters may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information
as may be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as the
Underwriters may reasonably request for distribution of the Securities.
(d) The Company will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any Preliminary Prospectus as
the Underwriters may reasonably request. The Company will deliver to, or upon
the order of, the Underwriters during the period when delivery of a Prospectus
is required under the Act, as many copies of the Prospectus in final
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form, or as thereafter amended or supplemented, as the Underwriters may
reasonably request. The Company will deliver to the Underwriters at or before
the Closing Date, three copies of the Registration Statement and all amendments
thereto including all exhibits filed therewith, and will deliver to the
Underwriters such number of copies of the Registration Statement (including such
number of copies of the exhibits filed therewith that may reasonably be
requested), including documents incorporated by reference therein, and of all
amendments thereto, as the Underwriters may reasonably request.
(e) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (i) prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earning
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim
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<PAGE> 16
financial statements of the Company for any period subsequent to the period
covered by the most recent financial statements appearing in the Registration
Statement and the Prospectus.
(h) The Company shall apply the net proceeds of its sale of
the Securities as set forth in the Prospectus.
(i) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Securities in such a
manner as would require the Company or any of the Subsidiaries to register as an
investment company under the Investment Company Act.
(j) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus and any supplements or amendments thereto, this Agreement, the
Underwriters' Invitation Letter, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees and
expenses incident to securing any required review by the NASD of the terms of
the sale of the Securities; and the expenses incurred in connection with the
qualification of the Securities under State securities or Blue Sky laws. The
Company shall not, however, be required to pay for any of the Underwriters'
expenses (other than those related to qualification under NASD regulation and
State securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Section 11
hereof, or by reason of any failure, refusal or inability on the part of the
Company to perform any undertaking or satisfy any condition of this Agreement or
to comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms shall be due to
the default or omission of any Underwriter, then the
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<PAGE> 17
Company shall reimburse the several Underwriters for reasonable out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred in
connection with investigating, marketing and proposing to market the Securities
or in contemplation of performing their obligations hereunder; but the Company
shall not in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits from the sale by them of the
Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the
Securities on the Closing Date are subject to the accuracy, as of the Closing
Date, of the representations and warranties of the Company contained herein, and
to the performance by the Company of its covenants and obligations hereunder and
to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Underwriters and complied with to their reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission and no injunction, restraining order, or other order of any nature by
a Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Securities.
(b) The Underwriters shall have received on the Closing Date,
the opinion of Rogers & Wells LLP, counsel for the Company, dated the Closing
Date, addressed to the Underwriters (and stating that it may be relied upon by
counsel to the Underwriters) to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own or lease its properties
and conduct its business as described in the Prospectus; each of the Designated
Subsidiaries and the Land Partnership has been duly organized and is validly
existing
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<PAGE> 18
as a corporation or partnership, as applicable, in good standing under the laws
of the jurisdiction of its incorporation or formation, with corporate or other
power and authority to own or lease its properties and conduct its business as
described in the Prospectus; the Company, each of the Designated Subsidiaries
and the Land Partnership are duly qualified to transact business in all
jurisdictions in which the conduct of their business requires such
qualification, except where such counsel has been informed that the failure to
qualify would not have a materially adverse effect upon the business of the
Company and the Subsidiaries taken as a whole; and the outstanding shares of
capital stock of each of the Designated Subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable and are owned by the
Company or a Subsidiary; and, to the best of such counsel's knowledge, the
outstanding shares of capital stock of each of the Designated Subsidiaries are
owned free and clear of all liens, encumbrances and equities and claims (except
for the pledge of the shares of certain of the direct and indirect subsidiaries
of LFS to the lenders under LFS's credit agreement), and no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into any shares of capital stock or of
ownership interests in the Designated Subsidiaries or the Land Partnership are
outstanding. The Company indirectly owns a 50% interest in the Land Partnership.
Such interest in the Land Partnership has been duly authorized and validly
issued and is owned by a Subsidiary which, to the best of such counsel's
knowledge, is indirectly wholly owned by the Company, free and clear of all
liens, encumbrances and equities and claims.
(ii) At November 30, 1998, the Company has
outstanding capital stock as set forth under the caption "Capitalization" in the
Prospectus; the outstanding shares of the Common Stock and Class B Common Stock
have been duly authorized and validly issued and are fully paid and
non-assessable; and no preemptive rights of stockholders exist with respect to
the capital stock or any other securities of the Company or the issue or sale
thereof.
(iii) Except as described in the Prospectus, to the
knowledge of such counsel, no holder of any securities of the Company or any
other person has the right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of, any of the Securities or
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<PAGE> 19
the right to have any securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration Statement,
to require registration under the Act of any securities of the Company.
(iv) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations under the
Securities and the Indenture.
(v) The Indenture has been duly qualified under the
Trust Indenture Act; the Indenture has been duly and validly authorized,
executed and delivered by the Company, and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes the valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(vi) The Securities are in the form contemplated by
the Indenture. The Securities have each been duly and validly authorized,
executed and delivered by the Company and, when paid for by the Underwriters in
accordance with the terms of this Agreement (assuming the due authorization,
execution and delivery of the Indenture by the Trustee and due authentication
and delivery of the Securities by the Trustee in accordance with the Indenture),
will constitute the valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture, and enforceable against the Company
in accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(vii) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the
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<PAGE> 20
transactions contemplated hereby; this Agreement and the consummation by the
Company of the transactions contemplated hereby have been duly and validly
authorized by the Company. This Agreement has been duly executed and delivered
by the Company.
(viii) The Indenture and the Securities conform as to
legal matters in all material respects to the descriptions thereof contained in
the Prospectus as supplemented or amended.
(ix) The Registration Statement has become effective
under the Act and, to the best of the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending or
threatened under the Act.
(x) The Registration Statement, the Prospectus and
each amendment or supplement thereto and document incorporated by reference
therein comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the financial
statements and related schedules included or incorporated by reference therein).
The conditions for the use of Form S-3, set forth in the General Instructions
thereto, have been satisfied.
(xi) The statements under the captions "Description
of Notes" and "Description of Debt Securities" in the Prospectus and Item 15 of
the Registration Statement, insofar as such statements constitute a summary of
documents referred to therein or matters of law, fairly summarize in all
material respects the information called for with respect to such documents and
matters.
(xii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated by reference in
the Registration Statement or described in the Registration Statement or the
Prospectus which are not so filed, incorporated by reference or described as
required, and such contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material respects.
(xiii) Such counsel knows of no material legal or
governmental proceedings pending or threatened against the Company, any of the
Subsidiaries or the Land Partnership except
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<PAGE> 21
as set forth in the Prospectus.
(xiv) The execution and delivery of this Agreement,
the Indenture and the Securities and the consummation of the transactions herein
and therein contemplated do not and will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under (or an event
which with the giving of notice or lapse of time or both would constitute a
default under) or result in the imposition or creation of (or the obligation to
create or impose) a lien on any property or assets of the Company, any
Designated Subsidiary or the Land Partnership with respect to, the Charter,
By-Laws or other comparable documents of the Company, any Designated Subsidiary
or the Land Partnership, or any material agreement or instrument known to such
counsel to which the Company, any of the Designated Subsidiaries or the Land
Partnership is a party or by which the Company, any of the Designated
Subsidiaries or the Land Partnership may be bound or any order, rule or
regulation known to such counsel to be applicable to the Company, any Designated
Subsidiary or the Land Partnership of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(xv) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution and
delivery of this Agreement, the Indenture and the Securities and the
consummation of the transactions herein and therein contemplated (other than as
may be required by the NASD or as required by State securities and Blue Sky laws
as to which such counsel need express no opinion) except such as have been
obtained or made, specifying the same.
(xvi) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the Prospectus,
required to register as an investment company under the Investment Company Act.
(xvii) Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or delivery of
the Securities will violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System.
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<PAGE> 22
In rendering such opinion, Rogers & Wells LLP may
rely as to matters governed by the laws of states other than New York, Delaware
General Corporation Law or Federal laws on local counsel in such jurisdictions,
provided that in each case Rogers & Wells LLP shall state that they believe that
they and the Underwriters are justified in relying on such other counsel. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that (i) the Registration Statement, at the time it
became effective under the Act (and at the time of filing of each document under
the Exchange Act that is incorporated by reference therein) and as of the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and as
of the Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not misleading (except that
such counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement, Rogers & Wells
LLP may state that their belief is based upon the procedures set forth therein,
but is without independent check and verification (except with respect to the
matters addressed in subparagraph (xi)).
(c) The Underwriters shall have received from Willkie Farr &
Gallagher, counsel for the Underwriters, an opinion dated the Closing Date, with
respect to certain legal matters relating to this Agreement, and such other
related matters as the Underwriters may reasonably require. In rendering such
opinion, Willkie Farr & Gallagher shall have received and may rely upon such
certificates and other documents and information as they may reasonably request
to pass upon such matters.
(d) The Underwriters shall have received at or prior to the
Closing Date from Willkie Farr & Gallagher a memorandum or summary, in form and
substance satisfactory to the Underwriters, with respect to the qualification
for offering and sale by the Underwriters of the Securities under the State
securities or Blue Sky laws of such jurisdictions as the Underwriters may
reasonably have designated to the Company.
(e) You shall have received, on each of the date
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<PAGE> 23
hereof and the Closing Date, as the case may be, a letter dated the date hereof
or the Closing Date, as the case may be, in form and substance satisfactory to
you, of Deloitte & Touche LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that in their opinion the financial
statements and schedules examined by them and incorporated by reference in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations; and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to the Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus.
(f) The Underwriters shall have received on the Closing Date,
a certificate or certificates of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that, as of the Closing Date,
each of them severally represents on behalf of the Company as follows:
(i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been taken
or are, to his knowledge, contemplated by the Commission;
(ii) The representations and warranties of the
Company contained in Section 1 hereof are true and correct as of the Closing
Date;
(iii) All filings which he has been advised by
counsel are required to have been made pursuant to Rule 424 or 430A under the
Act have been made;
(iv) He or she has carefully examined the
Registration Statement and the Prospectus and, in his or her opinion, as of the
effective date of the Registration Statement, the statements contained in the
Registration Statement were true and correct, and such Registration Statement
and Prospectus did not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, and
since the effective date of the Registration Statement, no event has occurred
which should have been set forth in a supplement to or an amendment of the
Prospectus which has not been
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<PAGE> 24
so set forth in such supplement or amendment; and
(v) Since the respective dates as of which
information is given in the Registration Statement and Prospectus, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or otherwise,
of the Company and its Subsidiaries taken as a whole or the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business.
(g) The Company shall have furnished to the Underwriters such
further certificates and documents confirming the representations and
warranties, covenants and conditions contained herein and related matters as the
Underwriters may reasonably have requested.
(h) The Supplemental Indenture shall have been duly executed
and delivered by the Company and the Trustee, and the Securities, shall have
been duly executed by the Company and duly authenticated by the Trustee
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Underwriters and to
Willkie Farr & Gallagher, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Underwriters by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date.
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligation of the Company to sell and deliver the
Securities required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date,
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<PAGE> 25
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within
the meaning of the Act, against any losses, claims, damages or
liabilities to which such Underwriter or any such controlling
person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or
alleged omission in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Prospectus, or
such amendment or supplement, made in reliance upon and in
conformity with written information furnished to the Company
by or through the Underwriters specifically for use in the
preparation thereof.
(2) to reimburse each Underwriter and each such
controlling person upon demand for any legal or other
out-of-pocket expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or
defending any such loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Securities, whether or
not such Underwriter or controlling person is a party to any
action or proceeding. In the event that it is
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finally judicially determined that any Underwriter was not
entitled to receive payments for legal and other expenses
pursuant to this subparagraph, such Underwriter will promptly
return all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each of its directors and officers and each
person, if any, who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities to which the Company or any such
director, officer, or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Underwriters specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the
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failure to give such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of the provisions of Section 8(a) or (b). In case any such proceeding shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred (or within 30 days of presentation) the fees and
expenses of the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel reasonably acceptable to the indemnified party within a reasonable
period of time after notice of commencement of the action. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement,
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compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action or proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus as amended or
supplemented. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8(d). The amount paid or payable by an indemnified party as a result of
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<PAGE> 29
the losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Securities purchased by such Underwriter and (ii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Prospectus or any
supplement or amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Securities and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
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9. DEFAULT BY UNDERWRITERS.
If on the Closing Date, any Underwriter shall fail to purchase
and pay for the portion of the Securities which such Underwriter has agreed to
purchase and pay for on such date (otherwise than by reason of any default on
the part of the Company), you shall use your reasonable efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others,
to purchase from the Company in such respective amounts as may be agreed upon
and upon the terms set forth herein, the Securities, which the defaulting
Underwriter or Underwriters failed to purchase. If during such 36 hours you
shall not have procured such other Underwriters, or any others, to purchase the
Securities, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate principal amount of Securities with
respect to which such default shall occur does not exceed 10% of the principal
amount of Securities covered hereby, the other Underwriters shall be obligated,
severally, in proportion to the respective principal amounts which they are
obligated to purchase hereunder, to purchase the Securities, which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate principal amount of Securities, with respect to which such default
shall occur exceeds 10% of the principal amount of Securities covered hereby,
the Company or you will have the right, by written notice to the parties to this
Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriters or of the Company except to the extent provided in
Section 8 hereof. In the event of a default by any Underwriter or Underwriters,
as set forth in this Section 9, the Closing Date, may be postponed for such
period, not exceeding seven days, as you may determine in order that the
required changes in the Registration Statement or in the Prospectus or in any
other documents or arrangements may be effected. The term "Underwriter" includes
any person substituted for a defaulting Underwriter. Any action taken under this
Section 9 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to BT Alex. Brown
Incorporated, One Bankers Trust Plaza, 130 Liberty Street, New York, New York
10006, Attention: Richard W. Thaler, Jr.; with a copy to BT Alex. Brown
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<PAGE> 31
Incorporated, One Bankers Trust Plaza, 130 Liberty Street, New York, New York
10006, Attention: General Counsel; if to the Company, to Lennar Corporation, 700
N.W. 107th Avenue, Miami, Florida 33172, Attention: Chief Financial Officer.
11. TERMINATION.
(a) This Agreement may be terminated by you by notice to the
Company at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole or the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business; (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your judgment, make it impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities; (iii) suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on prices (other
than limitations on hours or numbers of days of trading) for securities on
either such Exchange; (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company;
(v) declaration of a banking moratorium by United States or New York State
authorities; (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act); (vii) the suspension of trading of any securities of the
Company by the New York Stock Exchange, the Commission, or any other
governmental authority; or (viii) the taking of any action by any governmental
body or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the
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<PAGE> 32
securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of
the Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign merely because of such purchase.
13. INFORMATION PROVIDED BY THE UNDERWRITERS.
The Company and the Underwriters acknowledge and agree that
the only information furnished or to be furnished by any Underwriter to the
Company for inclusion in any Prospectus or the Registration Statement consists
of the information set forth in the last paragraph on the front cover page of
the prospectus supplement that is part of the Prospectus (insofar as such
information relates to the Underwriters), legends required by Item 502(d) of
Regulation S-K under the Act and the information under the caption
"Underwriting" in such prospectus supplement.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Securities
under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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<PAGE> 33
If the foregoing letter is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
LENNAR CORPORATION
By: /s/ DAVID B. MCCAIN
Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
BT ALEX. BROWN INCORPORATED
SALOMON SMITH BARNEY INC.
WARBURG DILLON READ INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By: BT Alex. Brown Incorporated
By:/s/ MITCHELL HECHT
Managing Director
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<PAGE> 34
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Principal Amount of Securities to
Underwriter be Purchased
- ----------- ------------
BT Alex. Brown Incorporated $ 98,700,000
Salomon Smith Barney Inc. 98,700,000
Warburg Dillon Read LLC 56,400,000
First Chicago Capital Markets, Inc. 28,200,000
-------------------
Total $282,000,000
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<PAGE> 1
================================================================================
LENNAR CORPORATION,
Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------------------------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 24, 1999
TO INDENTURE
DATED AS OF DECEMBER 31, 1997
----------------------------
Relating To
7 5/8% Senior Notes Due 2009
================================================================================
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE, dated as of February 24, 1999 (the
"Supplemental Indenture"), to 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.
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of December 31, 1997 (the "Indenture"), providing
for the issuance from time to time of its notes and other evidences of unsecured
indebtedness, to be issued in one or more series as therein provided
("Securities");
WHEREAS, Section 2.02 of the Indenture provides that the Company and
the Trustee, at any time and from time to time, may enter into an indenture
which supplements the Indenture to establish the terms of Securities of any
series;
WHEREAS, the Company has duly authorized the creation of an issue of
Securities to be known as the 7 5/8% Senior Notes Due 2009 (the "Notes") and to
provide therefor the Company has duly authorized the execution and delivery of
this Supplemental Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by the
Company and authenticated and delivered hereunder, the valid obligations of the
Company, and to make this Supplemental Indenture a valid agreement of the
Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, each party agrees for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Notes, as follows:
<PAGE> 3
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Capitalized terms used but not defined in this Supplemental
Indenture shall have the meanings ascribed to them in the Indenture.
SECTION 1.02. References in this Supplemental Indenture to section numbers shall
be deemed to be references to section numbers of this Supplemental Indenture
unless otherwise specified.
SECTION 1.03. In the case of capitalized terms defined in this Supplemental
Indenture that are also defined in the Indenture, the meanings ascribed to such
terms in this Supplemental Indenture shall apply with respect to the Notes.
SECTION 1.04. For purposes of this Supplemental Indenture, the following terms
have the meanings ascribed to them as follows:
"Adjusted Treasury Rate" means, with respect to any Determination Date,
the rate per annum equal to the semi-annual yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Determination Date, plus 37.5 basis points.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"beneficial owner" shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Securities Exchange Act of 1934.
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<PAGE> 4
A "Change in Control" shall be deemed to have occurred at such time
after the original issuance of the Notes as:
(a) any Person (including any syndicate or group deemed to be
a "person" under Section 13(d)(3) of the Securities Exchange Act of 1934), other
than the Company, any Subsidiary, any employee benefit plan of the Company or
any such Subsidiary, or Permitted Holders is or becomes the beneficial owner,
directly or indirectly, through a purchase or other acquisition transaction or
series of transactions (other than a merger or consolidation involving the
Company), of shares of capital stock of the Company entitling such Person to
exercise in excess of 50% of the total voting power of all shares of capital
stock of the Company entitled to vote generally in the election of directors;
(b) there occurs any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of another Person into
the Company, or any sale or transfer of the assets of the Company as, or
substantially as, an entirety, to another Person (other than (i) any such
transaction pursuant to which the holders of the Voting Stock immediately prior
to such transaction have, directly or indirectly, shares of capital stock of the
continuing or surviving corporation immediately after such transaction which
entitle such holders to exercise in excess of 50% of the total voting power of
all shares of capital stock of the continuing or surviving corporation entitled
to vote generally in the election of directors and (ii) any merger (A) which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Voting Stock or (B) which is effected solely to change the
jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Voting Stock solely into shares
of stock carrying substantially the same relative rights as the Voting Stock);
or
(c) a change in the Board of Directors of the Company in which
the individuals who constituted the Board of Directors of the Company at the
beginning of the two-year period immediately preceding such change (together
with any other director whose election to the Board of Directors of the Company
or whose nomination for election by the stockholders of the Company was approved
by a vote of at least a majority of the directors then in office either who were
directors at the beginning of such period or whose election or nomination for
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<PAGE> 5
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office.
"Change in Control Purchase Date" has the meaning provided in Section
2.03.
"Change in Control Purchase Notice" has the meaning provided in Section
2.03.
"Change in Control Purchase Price" has the meaning provided in Section
2.03.
"Common Stock" means the Company's Common Stock, par value $.10 per
share.
"Company Change in Control Notice" has the meaning provided in Section
2.03.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes.
"Comparable Treasury Price" means, with respect to any Determination
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such Determination Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or (ii) if such release (or any successor release) is
not published or does not contain such prices on such Business Day, (A) the
average of the Reference Treasury Dealer Quotations for such date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if fewer than three such Reference Treasury Dealer Quotations are obtained,
the average of all such Reference Treasury Dealer Quotations.
"Controlled" means ownership or control of more than 50% of the voting
power of such entity.
"Depositary" has the meaning provided in Article Three.
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<PAGE> 6
"Determination Date" means, with respect to the calculation of the
Make-Whole Price in connection with any redemption, repurchase or acceleration
of the Notes, the date of redemption, repurchase or acceleration.
"Event of Default" has the meaning provided in Section 5.01.
"Final Maturity" or "Final Maturity Date" shall be March 1, 2009.
"Funded Debt" of any Person means all Indebtedness for borrowed money
created, incurred, assumed or guaranteed in any manner by such person, and all
Indebtedness, contingent or otherwise, incurred or assumed by such person in
connection with the acquisition of any business, property or asset, which in
each case matures more than one year after, or which by its terms is renewable
or extendible or payable out of the proceeds of similar Indebtedness incurred
pursuant to the terms of any revolving credit agreement or any similar agreement
at the option of such person for a period ending more than one year after the
date as of which Funded Debt is being determined; provided, however, that Funded
Debt shall not include (i) any Indebtedness for the payment, redemption or
satisfaction of which money (or evidences of indebtedness, if permitted under
the instrument creating or evidencing such indebtedness) in the necessary amount
shall have been irrevocably deposited in trust with a trustee or proper
depository either on or before the maturity or redemption date thereof or (ii)
any Indebtedness of such person to any of its subsidiaries or of any subsidiary
to such person or any other subsidiary or (iii) any Indebtedness incurred in
connection with the financing of operating, construction or acquisition
projects, provided that the recourse for such indebtedness is limited to the
assets of such projects.
"Global Securities" means with respect to the Notes issued hereunder, a
Note or Notes executed by the Company and authenticated and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with this Supplemental Indenture and any supplemental indentures
hereto, if any, or a certified resolution of the Board of Directors and pursuant
to a written request by the Company, which shall be registered in the name of
the Depositary or its nominee and which shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all of the
outstanding Notes or any portion thereof, in either case having
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<PAGE> 7
the same terms, including, without limitation, the same original Issue Date.
"Indebtedness" means, with respect to the Company or any Subsidiary,
and without duplication, (a) the principal of and premium, if any, and interest
on, and fees, costs, enforcement expenses, collateral protection expenses and
other reimbursement or indemnity obligations in respect to all indebtedness or
obligations of the Company or any Subsidiary to any Person, including but not
limited to banks and other lending institutions, for money borrowed that is
evidenced by a note, bond, debenture, loan agreement, or similar instrument or
agreement (including purchase money obligations with original maturities in
excess of one year and noncontingent reimbursement obligations in respect of
amounts paid under letters of credit); (b) all reimbursement obligations and
other liabilities (contingent or otherwise) of the Company or any Subsidiary
with respect to letters of credit, bank guarantees or bankers' acceptances, (c)
all obligations and liabilities (contingent or otherwise) in respect of leases
of the Company or any Subsidiary required, in conformity with generally accepted
accounting principles, to be accounted for as capital lease obligations on the
balance sheet of the Company, (d) all obligations of the Company or any
Subsidiary (contingent or otherwise) with respect to an interest rate or other
swap, cap or collar agreement or other similar instrument or agreement or
foreign currency hedge, exchange, purchase or similar instrument or agreement,
(e) all direct or indirect guaranties or similar agreements by the Company or
any Subsidiary in respect of, and obligations or liabilities (contingent or
otherwise) of the Company or such Subsidiary to purchase or otherwise acquire,
or otherwise assure a creditor against loss in respect of, indebtedness,
obligations or liabilities of another Person of the kind described in clauses
(a) through (d), (f) any indebtedness or other obligations, excluding any
operating leases the Company or any Subsidiary is currently (or may become) a
party to, described in clauses (a) through (d) secured by any Lien existing on
property which is owned or held by the Company or Subsidiary, regardless of
whether the indebtedness or other obligation secured thereby shall have been
assumed by the Company or such Subsidiary and (g) any and all deferrals,
renewals, extensions and refinancing of, or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).
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<PAGE> 8
"Indenture" has the meaning provided in the Recitals.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Issue Date" of any Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Make-Whole Price" means, with respect to any Note as of any
Determination Date, an amount equal to the greater of (i) 100% of the principal
amount of such Note and (ii) as determined by an Independent Investment Banker,
the sum of the present values of the remaining scheduled payments of principal
and interest thereon (not including any portion of such payments of interest
accrued as of the Determination Date) discounted to the Determination Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate, plus, in each case, accrued and unpaid interest
thereon to such Determination Date.
"Paying Agent" means the office or agency designated by the Company
where Notes may be presented for payment.
"Permitted Holders" means any current holder of the Company's Class B
Common Stock and any permitted transferee of the Company's Class B Common Stock
under the terms of the Company's Certificate of Incorporation as it exists on
February 19, 1999.
"Permitted Liens" has the meaning provided in Section 4.01.
"Permitted Sale-Leaseback Transactions" has the meaning provided in
Section 4.02.
"Person" means any individual, corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
government agency or political subdivision.
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<PAGE> 9
"Record Date" means the Record Dates specified in the Notes.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Supplemental
Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Supplemental
Indenture.
"Reference Treasury Dealer" means each of BT Alex. Brown Incorporated,
Salomon Smith Barney Inc. SBC Warburg Dillon Read Inc., and First Chicago
Capital Markets, Inc. and their respective successors; provided, however, that
if any of the foregoing shall not be a primary U.S. Government securities dealer
in New York City (a "Primary Treasury Dealer") the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Determination Date, the average of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such Determination Date.
"Sale-Leaseback Transaction" means any arrangement with any person
providing for the leasing by the Company or a Subsidiary as lessee of any real
or tangible personal property, which property has been or is to be sold or
transferred by the Company or such Subsidiary to such person.
"Supplemental Indenture" has the meaning provided in the Preamble.
"Subsidiary" means (i) a corporation or other entity of which a
majority in voting power of the stock or other interests is owned by the
Company, by a Subsidiary of the Company or by the Company and one or more
Subsidiaries of the Company or (ii) a partnership, the sole general partner of
which is the Company or any Subsidiary.
"Trustee" means the person named as such in this Supplemental Indenture
and, subject to the provisions of Article 7 of the Indenture, any successor to
that person.
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<PAGE> 10
"Voting Stock" means the Common Stock, the Company's Class B Common
Stock and any other stock of the Company which votes together with the Common
Stock in the election of directors (without regard to whether there has been an
arrearage in the payment of dividends on preferred stock).
ARTICLE TWO
7 5/8% SENIOR NOTES DUE 2009
SECTION 2.01. In accordance with Section 2.02 of the Indenture, there is hereby
created a series of Securities under the Indenture entitled "7 5/8% Senior Notes
due 2009".
(1) The form of the Notes is attached hereto as Exhibit A, and the form
of the certificate of authentication is included as part of Exhibit A.
(2) Subject to Section 2.02 of the Indenture and applicable law, the
aggregate principal amount of the Notes which may be authenticated and delivered
shall not exceed $500,000,000; provided that, the aggregate principal amount of
Notes to be issued on the Issue Date shall not exceed $282,000,000.
(3) The aggregate principal amount of the Notes shall be payable on the
Final Maturity Date unless earlier repaid in accordance with this Supplemental
Indenture.
(4) Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the Issue
Date. The Company shall pay interest semi-annually in arrears on each Interest
Payment Date, commencing September 1, 1999. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed.
(5) All amounts payable in connection with the Notes shall be
denominated and payable in the lawful currency of the United States.
(6) The Notes shall be payable, and may be presented for registration
of transfer and exchange, without service charge, at the office of the Company
maintained for such purpose in New York, New York, which shall initially be the
office or agency of the Trustee.
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<PAGE> 11
(7) The Notes shall not be convertible into any class of capital stock
of the Company.
SECTION 2.02. Optional Redemption by the Company.
(1) Right to Redeem; Notice to Trustee. The Company, at its option, may
redeem the Notes in accordance with the provisions of paragraphs 5 and 6 of the
Notes. If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, it shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed and the Redemption Price that would be
in effect if such Notes were being redeemed on the date of the notice. The
Company shall give the notice to the Trustee provided for in this Section
2.02(1) at least 30 days but not more than 60 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee).
(2) Notice of Redemption. At least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail or cause to be mailed a notice
of redemption by first-class mail to the Trustee and to each Holder of Notes to
be redeemed at such Holder's address as it appears on the Note register.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price that would be in effect if such Notes
were being redeemed on the date of the notice;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be presented and
surrendered to the Paying Agent to collect the Redemption Price;
(e) that interest on Notes called for redemption shall cease
to accrue on and after the Redemption Date and, unless the Company defaults in
making the redemption payment, the only remaining right of the Holder shall be
to receive payment of the Redemption Price upon presentation and surrender to
the Paying Agent of the Notes;
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<PAGE> 12
(f) if fewer than all the outstanding Notes are to be
redeemed, the certificate number and principal amounts of the particular Notes
to be redeemed; and
(g) the CUSIP number or numbers for the Notes called for
redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
(3) Effect of Notice of Redemption. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice. Upon presentation and
surrender to the Paying Agent, Notes called for redemption shall be paid at the
Redemption Price.
(4) Sinking Fund. There shall be no sinking fund provided for the
Notes.
SECTION 2.03. Repurchase at Option of the Holder Upon a Change in Control.
(1) If a Change in Control shall occur at any time prior to the Final
Maturity Date, each Holder of Notes shall have the right, at such Holder's
option, to require the Company to purchase such Holder's Notes on the date (the
"Change in Control Purchase Date") (or if such date is not a Business Day, the
next succeeding Business Day) that is 35 days after the date of the Change in
Control. The Notes shall be repurchased in integral multiples of $l,000. The
Company shall purchase such Notes for Cash at a price (the "Change in Control
Purchase Price") equal to the Make-Whole Price as of the Change in Control
Purchase Date. No Notes may be repurchased at the option of the Holders due to a
Change in Control if there has occurred and is continuing an Event of Default
(other than a default in the payment of the Change in Control Purchase Price
with respect to such Notes).
(2) The Company, or at its request (which must be received by the
Trustee at least three Business Days (or such lesser period as agreed to by the
Trustee) prior to the date the Trustee is requested to give such notice as
described below) the Trustee in the name of and at the expense of the Company,
shall mail to all Holders of record of the Notes a notice (a "Company Change in
Control Notice") of the occurrence of a Change in Control and of the repurchase
right arising as a result thereof on or before the
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fifteenth day after the occurrence of such Change in Control. The Company shall
promptly furnish to the Trustee a copy of such notice.
(3) For a Note to be so repurchased at the option of the Holder, the
Paying Agent must receive such Note with the form entitled "Change in Control
Purchase Notice" on the reverse thereof duly completed, together with such Note
duly endorsed for transfer, on or before noon New York City time on the Change
in Control Purchase Date. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Note for redemption shall be
determined by the Company, whose determination shall be final and binding.
SECTION 2.04. Further Conditions for Purchase at the Option of Holders Upon a
Change in Control
(1) Effect of Change in Control Purchase Notice. Upon receipt by the
Company of the Change in Control Purchase Notice specified in Section 2.03(3),
the Holder of the Note in respect of which such Change in Control Purchase
Notice was given shall (unless such Change in Control Purchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Change in Control Purchase Price with respect to such
Note. Such Change in Control Purchase Price shall be paid to such Holder
promptly following the later of (x) the Change in Control Purchase Date
(provided the conditions in or Section 2.03(3) have been satisfied) and (y) the
time of delivery or book-entry transfer of such Note to the Paying Agent by the
Holder thereof in the manner required by Section 2.03(3).
A Change in Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent at any
time prior to the close of business on the Change in Control Purchase Date to
which it relates specifying:
(a) the certificate number of the Note in respect of which
such notice of withdrawal is being submitted,
(b) the principal amount of the Note with respect to which
such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which remains
subject to the original Change in Control Purchase
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Notice, and which has been or shall be delivered for purchase by the Company.
There shall be no redemption pursuant to Section 2.03 if there has
occurred prior to, on or after, as the case may be, the giving, by the Holders
of such Notes, of the required Change in Control Purchase Notice and is
continuing an Event of Default (other than a default in the payment of the
Change in Control Purchase Price with respect to such Notes).
(2) Deposit of Change in Control Purchase Price. On or before 3:00 p.m.
New York City time on the Change in Control Purchase Date the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or an
Affiliate of the Company is acting as the Paying Agent, shall segregate and hold
in trust) an amount of money sufficient to pay the aggregate Change in Control
Purchase Price of all the Notes or portions thereof which are to be purchased as
of such Change in Control Purchase Date.
(3) Notes Purchased in Part. Any Note that is to be purchased only in
part shall be surrendered at the office of the Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered which is not purchased or redeemed.
(4) Covenant to Comply with Securities Laws Upon Purchase of Notes. In
connection with any offer to purchase Notes under Section 2.03 hereof, the
Company shall (a) comply with Rule 14e-1 (which term, as used herein, includes
any successor provision thereto) under the Securities Exchange Act of 1934, if
applicable, and (b) otherwise comply with all federal and state securities laws
so as to permit the rights and obligations under Section 2.03 to be exercised in
the time and in the manner specified in Section 2.03.
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(5) Repayment to the Company. The Trustee and the Paying Agent shall
return to the Company any cash that remains unclaimed as provided in paragraph
12 of the Notes, together with any interest that the Trustee has agreed to pay,
if any, held by them for the payment of a Change in Control Purchase Price;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 2.04(2) exceeds the aggregate
Change in Control Purchase Price, as the case may be, of the Notes or portions
thereof which the Company is obligated to purchase as of the Change in Control
Purchase Date, then promptly after the Business Day following the Change in
Control Purchase Date, the Trustee and the Paying Agent shall return any such
excess to the Company together with any interest that the Trustee has agreed to
pay, if any.
SECTION 2.05. Defaulted Interest The Company shall pay
interest on overdue principal from time to time on demand at the rate of
interest borne by the Notes. The Company shall, to the extent lawful, pay
interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the rate of interest borne by the
Notes. All such interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months, and, in the case of a partial month, the
actual number of days elapsed.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which special record date shall be the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business Day.
The Company shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Note and the date of the proposed payment
(a "Default Interest Payment Date"), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such defaulted interest as provided in
this Section; provided, however, that in no event shall the Company deposit
monies proposed to be paid in respect of defaulted interest later than 11:00
a.m. New York City time of
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the proposed Default Interest Payment Date. At least 15 days before the
subsequent special record date, the Company shall mail (or cause to be mailed)
to each Holder, as of a recent date selected by the Company, with a copy to the
Trustee at least 20 days prior to such special record date, a notice that states
the subsequent special record date, the Default Interest Payment Date and the
amount of defaulted interest, and interest payable on such defaulted interest,
if any, to be paid. Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the 30-day period set forth in Section 5.01(1) shall
be paid to Holders as of the regular record date for the Interest Payment Date
for which interest has not been paid. Notwithstanding the foregoing, the Company
may make payment of any defaulted interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange.
ARTICLE THREE
GLOBAL SECURITIES
SECTION 3.01. If the Board of Directors of the Company shall establish that the
Notes are to be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee or its agent shall
authenticate and deliver such Global Security or Securities which (1) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the outstanding Notes to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
writing to the Trustee, (2) shall be registered in the name of The Depository
Trust Company, New York, New York (including any successor appointed by the
Company, the "Depositary") or its nominee, (3) shall be delivered by the Trustee
or its agent to the Depositary or pursuant to the Depositary's instruction and
(4) shall bear a legend substantially to the following effect:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY
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OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
Beneficial interests in the Global Securities shall be credited by the
Depositary to the accounts of its participants only in denominations of $1,000
or integral multiples thereof.
SECTION 3.02. Notwithstanding any other provisions herein but subject to the
provisions of Section 3.03 below, unless the terms of a Global Security
expressly permit such Global Security to be exchanged in whole or in part for
individual Notes, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.08 of the Indenture, only to a nominee
of the Depositary for such Global Security, or to the Depositary, or a successor
Depositary for such Global Security appointed by the Company, or to a nominee of
such successor Depositary.
SECTION 3.03. (1) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Notes ceases to be a
clearing agency registered under the Securities Exchange Act of 1934 or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a written request
by the Company for the authentication and delivery of individual Notes in
exchange for such Global Security, shall authenticate and deliver, individual
Notes in definitive form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security.
(2) The Company may at any time and in its sole discretion determine
that the Notes or any portion thereof issued or issuable in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company shall execute, and the Trustee, upon
receipt of a written request by the Company for the authentication and delivery
of individual Notes in exchange in whole or in part for such Global Security,
shall authenticate and deliver individual Notes in definitive form in an
aggregate principal amount equal to the principal amount of such Global
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Security or Securities representing such series or portion thereof in exchange
for such Global Security or Securities.
(3) If specified by the Company with respect to Notes issued or
issuable in the form of a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
individual Notes in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and deliver, without service charge, (a)
to each Person specified by such Depositary a new Note or Notes of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and (b) to such Depositary a new Global Security in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Notes delivered to the Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company shall execute and the Trustee or its agent shall
authenticate and deliver individual Notes in definitive registered form in
authorized denominations. Upon the exchange of the entire principal amount of a
Global Security for individual Notes, such Global Security shall be canceled by
the Trustee or its agent. Except as provided in the preceding paragraph, Notes
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The
Trustee or the Registrar shall deliver such Notes to the Persons in whose names
such Notes are so registered.
ARTICLE FOUR
ADDITIONAL COVENANTS
SECTION 4.01. Limitation on Liens. The Company shall not, nor shall it permit
any Subsidiary to, create, assume, incur or suffer to exist any Lien upon any of
its properties or assets, whether owned on the Issue Date or thereafter
acquired, unless (1) if such Lien secures Indebtedness which is pari passu with
the Notes, then the Notes are secured on an equal and ratable
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basis with the obligation so secured until such time as such obligation is no
longer secured by a Lien or (2) if such Lien secures Indebtedness which is
subordinated to the Notes, then the Notes are secured and the Lien securing such
Indebtedness is subordinated to the Lien granted to the holders of the Notes to
the same extent as such Indebtedness is subordinated to the Notes.
There shall be excluded from the restriction referred to in the next
preceding paragraph the following Liens (the Liens set forth in the following
clauses (a) through (i) being the "Permitted Liens"): (a) Liens on property of a
Person existing at the time such Person is merged into or consolidated with or
otherwise acquired by the Company or any Subsidiary, provided that such Liens
were in existence prior to, and were not created in contemplation of, such
merger, consolidation or acquisitions and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or a
Subsidiary; (b) Liens on property existing at the time of acquisition thereof by
the Company or any Subsidiary; provided that such Liens were in existence prior
to, and were not created in contemplation of, such acquisition and do not extend
to any assets other than the property acquired; (c) Liens imposed by law such as
carriers', warehouseman's or mechanics' Liens, and other Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business; (d) Liens securing Indebtedness representing, or incurred to finance,
the cost of acquiring, constructing or improving any assets, provided that the
principal amount of such Indebtedness does not exceed 100% of such cost,
including construction charges; (e) Liens existing on the Issue Date; (f) Liens
for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (g) Liens securing refinancing Indebtedness; provided that
any such Lien does not extend to or cover any property or assets other than the
property or assets securing Indebtedness so refunded, refinanced or extended;
(h) any extensions, substitutions, modifications, replacements or renewals of
the foregoing; and (i) easements, rights-of-way and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, licenses, restrictions on the use of property or
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minor imperfections in title thereto which, in the aggregate, are not material
in amount, and which do not in any case materially detract from the Company's
properties subject thereto.
Notwithstanding the foregoing, the Company may, and may permit any
Subsidiary to, create, assume, incur or suffer to exist any Lien upon any of its
properties or assets without equally and ratably securing the Notes if the
aggregate amount of all Indebtedness then outstanding secured by such Lien and
all similar Liens, together with the aggregate net sale proceeds from all
Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions,
does not exceed 15% of the total consolidated stockholders' equity of the
Company as shown on the most recent consolidated balance sheet that is contained
or incorporated in the latest annual report on Form 10-K (or equivalent report)
or quarterly report on Form 10-Q (or equivalent report) filed with the
Securities and Exchange Commission, and is as of a date not more than 181 days
prior to the date of determination, in the case of the consolidated balance
sheet contained or incorporated in an annual report on Form 10-K, or 135 days
prior to the date of determination, in the case of the consolidated balance
sheet contained in the quarterly report on Form 10-Q; provided that Indebtedness
secured by Permitted Liens shall not be included in the amount of such secured
Indebtedness.
SECTION 4.02. Sale and Leaseback Transactions. The Company shall not, nor shall
it permit any Subsidiary to, enter into any Sale-Leaseback Transaction. There
will be excluded from this restriction the following Sale-Leaseback Transactions
(the Sale-Leaseback Transactions set forth in the following clauses (1) through
(3) being "Permitted Sale-Leaseback Transactions"): (1) a Sale-Leaseback
Transaction involving the leasing by the Company and its Subsidiaries of model
homes in their communities, (2) a Sale-Leaseback Transaction relating to a
property which occurs within 120 days from the date of acquisition of such
property by the Company or a Subsidiary or the date of the completion of
construction or commencement of full operations on such property, whichever is
later, or (3) a Sale-Leaseback Transaction where the Company, within 120 days
after such Sale-Leaseback Transaction, applies or causes to be applied to the
retirement of Funded Debt of the Company or any Subsidiary (other than Funded
Debt of the Company which by its terms or the terms of the instrument pursuant
to which it was issued is subordinate in right of
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payment to the Notes) proceeds of the sale of such property, but only to the
extent of the amount of proceeds so applied.
Notwithstanding the foregoing provisions, the Company may, and may
permit any Subsidiary to, effect any Sale-Leaseback Transaction involving any
real or tangible personal property which is not a Permitted Sale-Leaseback
Transaction, provided that the aggregate net sales proceeds from all
Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions,
together with all Indebtedness secured by Liens other than Permitted Liens, does
not exceed 15% of the total consolidated stockholders' equity of the Company as
shown on the most recent consolidated balance sheet that is contained or
incorporated in the latest annual report on Form 10-K (or equivalent report) or
quarterly report on Form 10-Q (or equivalent report) filed with the Securities
and Exchange Commission, and is as of a date not more than 181 days prior to the
date of determination, in the case of the consolidated balance sheet contained
or incorporated in an annual report on Form 10-K, or 135 days prior to the date
of determination, in the case of the consolidated balance sheet contained in the
quarterly report on Form 10-Q.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Additional Events of Default. In addition to the applicable Events
of Default set forth in Section 6.01 of the Indenture, any one of the following
events shall constitute an "Event of Default" hereunder and thereunder whenever
used with respect to the Notes in this Supplemental Indenture (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) a default by the Company in the payment when due of interest on the
Notes, which default continues for a period of 30 days;
(2) a default by the Company in the payment when due of the principal,
Redemption Price, or Change in Control Purchase Price due with respect to the
Notes;
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(3) a default by the Company or any Subsidiary with respect to its
obligation to pay Indebtedness for borrowed money (other than Indebtedness which
is non-recourse to the Company or the Subsidiary), which default shall have
resulted in the acceleration of, or be a failure to pay at final maturity,
Indebtedness aggregating more than $20 million;
(4) a failure to perform any other covenant or warranty of the Company
herein and in the Indenture, which continues for 30 days after written notice as
provided in Section 6.01 of the Indenture;
(5) final judgments or orders are rendered against the Company or any
of its Subsidiaries which require the payment by the Company or any of its
Subsidiaries of an amount (to the extent not covered by insurance) in excess of
$20 million and such judgments or orders remain unstayed or unsatisfied for more
than 60 days and are not being contested in good faith by appropriate
proceedings; or
(6) any event described in Sections 6.01(4) or 6.01(5) of the Indenture
shall occur with respect to the Company or any of its Subsidiaries.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default occurs and is continuing, unless the principal of the Notes has already
become due and payable, the Trustee by notice to the Company, or the Holders of
not less than 25 percent in aggregate principal amount of the Notes then
outstanding by notice to the Company and the Trustee may declare the Make-Whole
Price on all of the Notes to be immediately due and payable. Upon such a
declaration, such Make-Whole Price shall be due and payable immediately. If an
Event of Default specified in Section 6.01(4) or (5) of the Indenture or Section
5.01(6) of this Supplemental Indenture occurs and is continuing, the Make-Whole
Price on all of the Notes shall automatically become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders. The Holders of a majority in aggregate principal amount of the Notes
then outstanding, on behalf of the Holders of all of the Notes, by notice to the
Company and the Trustee (and without notice to any other Holder), may rescind
any acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of the Make-Whole Price on
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any of the Notes that has become due solely as a result of acceleration and if
all amounts due to the Trustee under Section 7.07 of the Indenture have been
paid. No such rescission shall affect any subsequent Default or Event of Default
or impair any right consequent thereto.
In case the Trustee shall have proceeded to enforce any right under
this Supplemental Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission and annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company, the Holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder and all rights,
remedies and powers of the Company, the Holders of Notes, and the Trustee shall
continue as though no such proceeding had been taken.
The Trustee shall within 90 days after a Trust Officer has knowledge of
the occurrence of a Default or any Event of Default, mail to all Holders, as the
names and addresses of such Holders appear upon the Note register, notice of all
Defaults or Events of Default known to a Trust Officer, unless such Default or
Event of Default is cured or waived before the giving of such notice and
provided that, except in the case of default in the payment of the principal,
interest, Redemption Price, Change in Control Purchase Price, as the case may
be, on any of the Notes, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of directors and/or officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
The Holders of a majority in principal amount of the Notes then
outstanding shall have the right to direct the time, method and place of
conducting any proceedings for any remedy available to the Trustee, subject to
the limitations specified in the Indenture.
ARTICLE SIX
DISCHARGE OF SUPPLEMENTAL INDENTURE
Except as set forth in this Article Six to the contrary, the terms in Article
Eight of the Indenture shall govern.
SECTION 6.01. Discharge of Supplemental Indenture. When (1) the Company shall
deliver to the Trustee for cancellation all Notes
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theretofore authenticated (other than any Notes which have been destroyed, lost
or stolen and in lieu of or in substitution for which other Notes shall have
been authenticated and delivered) and not theretofore canceled, or (2) all the
Notes not theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year, and the Company shall deposit with the Trustee, in
trust, monies sufficient to pay at the Final Maturity Date (other than any Notes
which shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
not theretofore canceled or delivered to the Trustee for cancellation, including
the principal amount and interest accrued to the Final Maturity Date, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then the Indenture and this Supplemental Indenture shall cease to
be of further effect with respect to the Notes (except as to (i) remaining
rights of registration of transfer, substitution and exchange of Notes, (ii)
rights hereunder of Holders to receive payments of the principal amount (other
than any Change in Control Purchase Price with respect to a Change in Control
occurring after the date of such deposit), including interest due with respect
to the Notes and the other rights, duties and obligations of Holders, as
beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee and (iii) the rights, obligations and immunities of the Trustee
hereunder and under the Indenture with respect to the Notes), and the Trustee,
on demand of the Company accompanied by an Officers' Certificate and an Opinion
of Counsel as required by Section 6.03 and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging the Indenture and this Supplemental Indenture with respect to the
Notes; the Company, however, hereby agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee and
to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with the Indenture with respect to the
Notes, this Supplemental Indenture or the Notes.
SECTION 6.02. Reinstatement. If the Trustee or the Paying Agent is unable to
apply any money in accordance with Section 8.02 of the Indenture by reason of
any order or judgment of any court of governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under the
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Indenture and this Supplemental Indenture shall be revived and reinstated with
respect to the Notes as though no deposit had occurred pursuant to Section 6.01
until such time as the Trustee or the Paying Agent is permitted to apply all
such money in accordance with Section 8.02 of the Indenture, provided, however,
that if the Company makes any payment of principal amount or Redemption Price of
or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
SECTION 6.03. Officers' Certificate; Opinion of Counsel. Upon any application or
demand by the Company to the Trustee to take any action under Section 6.01, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in the Indenture and this
Supplemental Indenture relating to the proposed action have been complied with,
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each such Officers' Certificate and Opinion of Counsel provided for in
this Supplemental Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant pursuant to the previous paragraph shall
comply with the provisions of Section 12.05 of the Indenture.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.01. With Consent of Holders. In addition to those matters described in
Section 9.02 of the Indenture which require the consent of the Holder so
affected to amend, supplement or waive any provision of the Indenture or this
Supplemental Indenture, without the consent of the Holder so affected, the
Company and the Trustee may not:
(1) without the consent of the Holder of each Note so affected, extend
the fixed maturity of any Note or any installment of interest thereon, reduce
the principal amount, interest rate, Change in Control Purchase Price,
Redemption Price, or amount due upon acceleration change the obligation of the
Company to repurchase any Note upon the occurrence of any Change in Control in a
manner adverse to Holders of Notes, impair
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the right of a Holder to institute suit for the payment thereof, change the
currency in which the Notes are payable, or
(2) without the consent of the Holders of all of the Notes then
outstanding, reduce the aforesaid percentage of Notes the Holders of which are
required to consent to any such supplemental indenture.
Except as set forth in this Article Seven to the contrary, the terms in
Article Nine of the Indenture shall govern.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01. TIA Controls. If any provision hereof limits, qualifies or
conflicts with the duties imposed by Section 310 through 317 of the TIA, the
imposed duties shall control.
SECTION 8.02. Conflict with Indenture. To the extent not expressly amended or
modified by this Supplemental Indenture, the Indenture shall remain in full
force and effect. If any provision of this Supplemental Indenture relating to
the Notes is inconsistent with any provision of the Indenture, the provision of
this Supplemental Indenture shall control with regard to the Notes.
SECTION 8.03. Governing Law. This Supplemental Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
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 Supplemental Indenture
or with regard to the Notes, 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 shall 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 8.04. Successors. All agreements of the Company in the Indenture, this
Supplemental Indenture and the Notes shall bind
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its successors. All agreements of the Trustee in the Indenture and this
Supplemental Indenture shall bind its successors.
SECTION 8.05. Counterparts. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties to this Supplemental Indenture have
caused it to be duly executed as of the day and year first above written.
LENNAR CORPORATION
By:
------------------------------
Name: Stuart A. Miller
Title: Chief Executive Officer
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------
Name:
Title:
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EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
CUSIP No.: 528057 AB0
LENNAR CORPORATION
7 5/8% SENIOR NOTES DUE 2009
No. 1 $282,000,000
Interest Rate: 7 5/8% per annum.
Interest Payment Dates: March 1 and September 1, commencing
September 1, 1999
Record Dates: February 15 and August 15
Lennar Corporation, a Delaware corporation (the "Company,"
which term includes any successor entities), for value received, promises to pay
to CEDE & CO. or registered assigns, on March 1, 2009, the principal amount of
TWO HUNDRED EIGHTY TWO MILLION Dollars ($282,000,000), together with interest
thereon as hereinafter provided.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, Lennar Corporation has caused this
instrument to be duly executed under its corporate seal.
LENNAR CORPORATION
By:
------------------------------
Title:
Attest:
By:
------------------------------
Title:
[SEAL]
Dated: February , 1999
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes described in the
within-mentioned Indenture and Supplemental
Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:
--------------------------
Authorized Signatory
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LENNAR CORPORATION
7 5/8% SENIOR NOTE DUE 2009
1. INTEREST
The Company promises to pay interest on the principal amount of this
Note at the rate per annum above. Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the Issue Date. The Company shall pay interest semi-annually in
arrears on each Interest Payment Date, commencing as of the Interest Payment
Date referred to above. Interest will be computed on the basis of a 360-day year
of twelve 30-day months and, in the case of a partial month, the actual number
of days elapsed.
The Company shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the rate borne by the Notes.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Supplemental Indenture, the
Company shall (a) pay interest on the Notes (except defaulted interest) to the
Persons who are the registered Holders of Notes at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are canceled transferred or exchanged after such Record Date, and (b) make all
other payments in respect of the Notes to the Persons who are registered Holders
of Notes at the close of business on the Business Day preceding the Redemption
Date or Final Maturity, as the case may be, or at the close of business on a
Change in Control Purchase Date. Holders must surrender Notes to a Paying Agent
to collect such payments in respect of the Notes referred to in clause (b) of
the preceding sentence. The Company shall pay cash amounts in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may make the cash payments by check
payable in such money.
3. PAYING AGENT, AND REGISTRAR
Initially, The First National Bank of Chicago, a national banking
association (the "Trustee"), shall act as Paying Agent and Registrar. The
Company may appoint and change any Paying
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Agent, Registrar or co-registrar without notice, other than notice to the
Trustee. The Company or any of its Subsidiaries or any of their Affiliates may
act as Paying Agent, Registrar or co-registrar.
4. SUPPLEMENTAL INDENTURE
The Company issued the Notes under the Second Supplemental Indenture
(the "Supplemental Indenture"), dated as of February 24, 1999, between the
Company and the Trustee, and the Indenture. Capitalized terms used herein and
not defined herein have the meanings ascribed thereto in the Supplemental
Indenture. The Notes are subject to all such terms, and Holders are referred to
the Supplemental Indenture and the Indenture for a statement of those terms.
The Notes are general unsecured, unsubordinated obligations of the
Company limited to $282,000,000 aggregate principal amount. The Indenture and
the Supplemental Indenture do not limit other indebtedness of the Company.
5. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Notes. The Notes are redeemable as
a whole, or from time to time in part, at any time at the option of the Company
at a Redemption Price equal to the Make-Whole Price.
6. NOTICE OF REDEMPTION AT THE OPTION OF THE COMPANY
Notice of redemption at the option of the Company shall be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at the Holder's registered address. If money
sufficient to pay the Redemption Price of all Notes (or portions thereof) to be
redeemed on the Redemption Date is deposited with the Paying Agent prior to or
on the Redemption Date, interest ceases to accrue on such Notes or portions
thereof on and after such date. Notes in denominations larger than $1,000 may be
redeemed in part but only in integral multiples of $1,000.
7. PURCHASE AT THE OPTION OF THE HOLDER UPON A CHANGE IN CONTROL
(a) If a Change in Control shall occur at any time prior to the Final
Maturity Date, each Holder of Notes shall have the
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right, at such Holder's option and subject to the terms and conditions of the
Supplemental Indenture, to require the Company to purchase such Holder's Notes
on the Business Day that is 35 days after the date of the Change in Control for
a purchase price (the "Change in Control Purchase Price") equal to the
Make-Whole Price at the Change in Control Purchase Date, which Change in Control
Purchase Price shall be paid in cash. Notes in denominations larger than $1,000
may be redeemed in part in connection with a Change in Control, but only in
integral multiples of $1,000.
(b) Holders have the right to withdraw any Change in Control Purchase
Notice by delivery to the Paying Agent of a written notice of withdrawal in
accordance with the provisions of the Supplemental Indenture.
(c) If cash sufficient to pay a Change in Control Purchase Price of all
Notes or portions thereof to be purchased as of the Change in Control Purchase
Date is deposited with the Trustee or any Paying Agent on the Change in Control
Purchase Date, interest ceases to accrue on such Notes (or portions thereof) on
and after such date, and the Holder thereof shall have no other rights as such
(other than the right to receive the Change in Control Purchase Price upon
surrender or such Note).
8. RANKING
The Notes shall be direct, unsecured obligations of the Company and
shall rank pari passu in right of payment with all other unsecured and
unsubordinated indebtedness of the Company.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiplies of $1,000. A Holder may transfer Notes in
accordance with the Supplemental Indenture and the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any governmental taxes and fees required by law or
permitted by the Supplemental Indenture. The Registrar need not transfer or
exchange any Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Note not to be redeemed) or any Notes in
respect of which a Change in Control Purchase Notice has been given and not
withdrawn (except, in the case of a Note to be purchased in part, the portion of
the Note not to be purchased)
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or any Notes for a period of 15 days before any selection of Notes to be
redeemed.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
11. UNCLAIMED MONEY OR PROPERTY
The Trustee and the Paying Agent shall return to the Company upon
written request any money or property held by them for the payment of any amount
with respect to the Notes that remains unclaimed for two years, provided,
however, that the Trustee or such Paying Agent, before being required to make
any such return, shall at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York or mail to each
such Holder notice that such money or property remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication or mailing, any unclaimed money or property then remaining
shall be returned to the Company. After return to the Company, Holders entitled
to the money or property must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another Person.
12. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture and the
Supplemental Indenture, (i) the Supplemental Indenture or the Notes may be
amended with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes at the time outstanding and (ii) certain
defaults or noncompliance with certain provisions may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
at the time outstanding. Subject to certain exceptions set forth in the
Indenture and the Supplemental Indenture, without the consent of any Holder, the
Company and the Trustee may amend the Supplemental Indenture or the Notes to
cure any ambiguity, defect or inconsistency, to make any change that does not
adversely affect the right of any Holder, to convey, transfer, assign, mortgage
or pledge to the Trustee as security for the Notes any property or assets, to
evidence the succession of another corporation to the Company (or successive
successions) and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company, to add to the
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covenants of the Company such further covenants, restrictions or conditions as
the Board of Directors and the Trustee shall consider to be for the benefit of
the Holders of Notes, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions or
conditions a Default or an Event of Default permitting the enforcement of all or
any of the several remedies provided in the Supplemental Indenture and the
Indenture, to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Notes, or to modify, eliminate or add
to the provisions of the Supplemental Indenture to such extent as shall be
necessary for the Supplemental Indenture to comply with the TIA, or under any
similar federal statue hereafter enacted.
13. DEFAULTS AND REMEDIES
Under the Supplemental Indenture, Events of Default include (i) a
default by the Company in the payment of any interest which continues for more
than 30 days after the due date, (ii) a default by the Company in the payment of
any principal, Redemption Price, or Change in Control Purchase Price due with
respect to the Notes; (iii) a default by the Company or any Subsidiary with
respect to its obligation to pay Indebtedness for borrowed money (other than
Indebtedness which is non-recourse to the Company or the Subsidiary), which
default shall have resulted in the acceleration of, or be a failure to pay at
final maturity, Indebtedness aggregating more than $20 million; (iv) a failure
to perform any other covenant or warranty of the Company herein and in the
Indenture, which continues for 30 days after written notice as provided in
Section 6.01 of the Indenture; (v) final judgments or orders are rendered
against the Company or any of its Subsidiaries which require the payment by the
Company or any of its Subsidiaries of an amount (to the extent not covered by
insurance) in excess of $20 million and such judgments or orders remain unstayed
or unsatisfied for more than 60 days and are not being contested in good faith
by appropriate proceedings; and (vi) any event described in Sections 6.01(4) or
6.01(5) of the Indenture with respect to the Company or any of its Subsidiaries.
If an Event of Default occurs and is continuing, the Trustee, or the Holders of
at least 25% in aggregate principal amount of the Notes at the time outstanding,
may declare the Make-Whole Price of all the Notes to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which shall result in the Make-Whole Price of all Notes being declared
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due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Supplemental Indenture, the Indenture or
the Notes except as provided in the Indenture and the Supplemental Indenture.
The Trustee may refuse to enforce the Indenture, the Supplemental Indenture and
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, conditions and exceptions, Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may direct the
Trustee in its exercise of any trust or power, including the annulment of a
declaration of acceleration. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment of amounts specified in clauses
(i) and (ii) above) if it determines that withholding notice is in their
interests.
14. TRUSTEE DEALINGS WITH THE COMPANY
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
and collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS
A director, officer or employee, as such, of the Company or any
Subsidiary, the Indenture or any stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Notes or the
Supplemental Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
16. AUTHENTICATION
This Note shall not be valid until an authorized officer of the Trustee
manually signs the Trustee's Certificate of Authentication on the other side of
this Note.
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17. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
18. GOVERNING LAW
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE SUPPLEMENTAL
INDENTURE AND THIS NOTE.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Supplemental Indenture which has in it the text of
this Note in larger type. Requests may be made to:
Lennar Corporation
700 N.W. 107th Avenue
Miami, Florida 33172
Attn: Chief Financial Officer
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CHANGE IN CONTROL PURCHASE NOTICE
To: Lennar Corporation
The undersigned registered Holder of this Note hereby acknowledges
receipt of a notice from Lennar Corporation (the "Company") as to the occurrence
of a Change in Control with respect to the Company and requests and instructs
the Company to repurchase this Note, or the portion hereof (which is $1,000 in
principal amount or an integral multiple thereof) designated below, in
accordance with the terms of the Supplemental Indenture referred to in this Note
and directs that the check in payment for this Note or the portion thereof and
any Notes representing any unrepurchased principal amount hereof, be issued and
delivered to the registered Holder hereof unless a different name has been
indicated below. If any portion of this Note not repurchased is to be issued in
the name of a Person other than the undersigned, the undersigned shall pay all
governmental taxes and fees payable with respect to such transfer.
Dated:
-----------------------------------
Signature(s)
Fill in for registration of Notes if to be issued other than to and in the name
of registered holder:
- ------------------------------
(Name)
- ------------------------------
(Street Address)
- ------------------------------
(City, state and zip code)
Please print name and address
principal amount to be purchased
(if less than all):
$__,000
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-----------------------------------
Social Security or Other
Taxpayer Number
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ASSIGNMENT
For value received __________ hereby sell(s), assign(s) and transfer(s)
unto __________ (Please insert social security or other Taxpayer Identification
Number of assignee) the within Note, and hereby irrevocably constitutes and
appoints __________ attorney to transfer the said Note on the books of the
Company, with full power of substitution in the premises.
Dated:
---------------------------------------
Signature(s)
NOTICE: The above signatures of the
holder(s) hereof must correspond
with the name as written upon the
face of the Note in every particular
without alteration or enlargement or
any change whatever.
---------------------------------------
Signature Guarantee
Signature must be guaranteed by an "eligible guarantor institution," that is, a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934.
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Exhibit 23.1
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Lennar Corporation
We consent to the incorporation by reference in the Registration Statement of
Lennar Corporation (333-45527) on Form S-3 of our report dated January 20, 1998,
appearing in the Annual Report on Form 10-K of Lennar Corporation for the year
ended November 30, 1997 and to the reference to our firm under the heading
"Experts" in the Prospectus Supplement dated Febuary 19, 1999, which is a part
of the Registration Statement.
DELOITTE & TOUCHE LLP
Miami, Florida
Febuary 23, 1999
