MASTER ISSUING AND PAYING AGENCY AGREEMENT
This
Agreement, dated as of March 29, 2006, is by and among Lennar Corporation (the
“Issuer”),
each
of the Guarantors that becomes a party to this Agreement by executing a Guaranty
in substantially the form of Exhibit C hereto and JPMorgan Chase Bank, N.A.
(“JPMorgan”).
1. APPOINTMENT
AND ACCEPTANCE
The
Issuer hereby appoints JPMorgan as its issuing and paying agent in connection
with the issuance and payment of certain short-term promissory notes of the
Issuer (the “Notes”),
as
further described herein, and JPMorgan agrees to act as such agent upon the
terms and conditions contained in this Agreement.
2. COMMERCIAL
PAPER PROGRAMS
The
Issuer may establish one or more commercial paper programs under this Agreement
by delivering to JPMorgan a completed program schedule (the “Program
Schedule”),
with
respect to each
such
program. JPMorgan has given the Issuer a copy of the current form of Program
Schedule and the Issuer shall complete and return its first Program Schedule
to
JPMorgan prior to or simultaneously with the execution of this Agreement. In
the
event that any of the information provided in, or attached to, a Program
Schedule shall change, the Issuer shall promptly inform JPMorgan of such change
in writing.
3. NOTES
All
Notes
issued by the Issuer under this Agreement shall be short-term promissory notes,
guaranteed (except as provided in Section 32(b) hereof) by a guaranty of the
Guarantors (each a “Guaranty”
and,
collectively, the “Guaranties”),
exempt
from the registration requirements of the Securities Act of 1933, as amended,
as
indicated on the Program Schedules, and from applicable state securities laws.
The dealers (the “Dealers”)
may
cause the Notes to be issued pursuant to Section 4 hereof. Notes shall be issued
in either certificated or book-entry form.
4.
AUTHORIZED REPRESENTATIVES
The
Issuer shall deliver to JPMorgan a duly adopted corporate resolution from the
Issuer’s Board of Directors (or other governing body) authorizing the issuance
of Notes under each program established pursuant to this Agreement and a
certificate of incumbency, with specimen signatures attached, of those officers,
employees and agents of the Issuer authorized to take certain actions with
respect to the Notes as provided in this Agreement (each such person is
hereinafter referred to as an “Authorized
Representative”).
Until
JPMorgan receives any subsequent incumbency certificates of the Issuer, JPMorgan
shall be entitled to rely on the last incumbency certificate delivered to it
for
the purpose of determining the Authorized Representatives. The Issuer represents
and warrants that each Authorized Representative may appoint other officers,
employees and agents of the Issuer (the “Delegates”),
including without limitation any Dealers, to issue instructions to JPMorgan
under this Agreement, and take other actions on the behalf of the Issuer and
the
Guarantors hereunder, provided that notice of the appointment of each Delegate
is delivered to JPMorgan in writing by the Issuer. Each such appointment shall
remain in effect unless and until revoked by the Issuer in a written notice
to
JPMorgan.
5. CERTIFICATED
NOTES
If
and
when the Issuer intends to issue certificated notes (“Certificated
Notes”),
the
Issuer and JPMorgan shall agree upon the form of such Notes. Thereafter, the
Issuer shall from time to time deliver to JPMorgan adequate supplies of
Certificated Notes which will be in bearer form, serially numbered, and shall
be
executed by the manual or facsimile signature of an Authorized Representative.
JPMorgan will acknowledge receipt of any supply of Certificated Notes received
from the Issuer, noting any exceptions to the shipping manifest or transmittal
letter (if any), and will hold the Certificated Notes in safekeeping for the
Issuer in accordance with JPMorgan’s customary practices. JPMorgan shall not
have any liability to the Issuer or any of the Guarantors to determine by whom
or by what means a facsimile signature may have been affixed on Certificated
Notes, or to determine whether any facsimile or manual signature is genuine,
if
such facsimile or manual signature resembles the specimen signature attached
to
the Issuer’s certificate of incumbency with respect to such Authorized
Representative. Any Certificated Note bearing the manual or facsimile signature
of a person who is an Authorized Representative on the date such signature
was
affixed shall bind the Issuer and the Guarantors after completion and
countersignature thereof by JPMorgan, notwithstanding that such person shall
have ceased to hold his or her office on the date such Note is countersigned
or
delivered by JPMorgan.
6. BOOK-ENTRY
NOTES
The
Issuer’s book-entry notes (“Book-Entry
Notes”)
shall
not be issued in physical form, but their aggregate face amount shall be
represented by a master note (the “Master
Note”)
in the
form of Exhibit A executed by the Issuer pursuant to the book-entry commercial
paper program of The Depository Trust Company (“DTC”).
JPMorgan shall maintain the Master Note in safekeeping, in accordance with
its
customary practices, on behalf of Cede & Co., the registered owner thereof
and nominee of DTC. As long as Cede & Co. is the registered owner of the
Master Note, the beneficial ownership interest therein shall be shown on, and
the transfer of ownership thereof shall be effected through, entries on the
books maintained by DTC and the books of its direct and indirect participants.
The Master Note and the Book-Entry Notes shall be subject to DTC’s rules and
procedures, as amended from time to time. JPMorgan shall not be liable or
responsible for sending transaction statements of any kind to DTC’s participants
or the beneficial owners of the Book-Entry Notes, or for maintaining,
supervising or reviewing the records of DTC or its participants with respect
to
such Notes. In connection with DTC’s program, the Issuer understands that as one
of the conditions of its participation therein, it shall be necessary for the
Issuer and JPMorgan to enter into a Letter of Representations, in the form
of
Exhibit B hereto, and for DTC to receive and accept such Letter of
Representations. In accordance with DTC’s program, JPMorgan shall obtain from
the CUSIP Service Bureau a written list of CUSIP numbers for Issuer’s Book-Entry
Notes, and JPMorgan shall deliver such list to DTC. The CUSIP Service Bureau
shall xxxx the Issuer directly for the fee or fees payable for the list of
CUSIP
numbers for the Issuer’s Book-Entry Notes.
7. ISSUANCE
INSTRUCTIONS TO JPMORGAN; PURCHASE PAYMENTS
The
Issuer and the Guarantors understand that all instructions under this Agreement
are to be directed to JPMorgan’s Commercial Paper Operations Department.
JPMorgan shall provide the Issuer, or, if applicable, the Issuer’s Dealers, with
access to JPMorgan’s Money Market Issuance System or other electronic means
(collectively, the “System”)
in
order that JPMorgan may receive electronic instructions for the issuance of
Notes. Electronic instructions must be transmitted in accordance with the
procedures furnished by JPMorgan to the Issuer or its Dealers in connection
with
the System. These transmissions shall be the equivalent to the giving of a
duly
authorized written and signed instruction which JPMorgan may act upon without
liability. In the event that the System is inoperable at any time, an Authorized
Representative or a Delegate may deliver written, telephone or facsimile
instructions to JPMorgan, which instructions shall be verified in accordance
with any security procedures agreed upon by the parties. JPMorgan shall incur
no
liability to the Issuer or the Guarantors in acting upon instructions believed
by JPMorgan in good faith to have been given by an Authorized Representative
or
a Delegate. In the event that a discrepancy exists between a telephonic
instruction and a written confirmation, the telephonic instruction will be
deemed the controlling and proper instruction. JPMorgan may electronically
record any conversations made pursuant to this Agreement, and the Issuer and
the
Guarantors hereby consent to such recordings. All issuance instructions
regarding the Notes must be received by 1:00 P.M. New York time in order for
the
Notes to be issued or delivered on the same day.
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(a) Issuance
and Purchase of Book-Entry Notes.
Upon
receipt of issuance instructions from the Issuer or its Dealers with respect
to
Book-Entry Notes, JPMorgan shall transmit such instructions to DTC and direct
DTC to cause appropriate entries of the Book-Entry Notes to be made in
accordance with DTC’s applicable rules, regulations and procedures for
book-entry commercial paper programs. JPMorgan shall assign CUSIP numbers to
the
Issuer’s Book-Entry Notes to identify the Issuer’s aggregate principal amount of
outstanding Book-Entry Notes in DTC’s system, together with the aggregate unpaid
interest (if any) on such Notes. Promptly following DTC’s established settlement
time on each issuance date, JPMorgan shall access DTC’s system to verify whether
settlement has occurred with respect to the Issuer’s Book-Entry Notes. Prior to
the close of business on such business day, JPMorgan shall deposit immediately
available funds in the amount of the proceeds due the Issuer (if any) to the
Issuer’s account at JPMorgan and designated in the applicable Program Schedule
(the “Account”),
provided
that
JPMorgan
has received DTC’s confirmation that the Book-Entry Notes have settled in
accordance with DTC’s applicable rules, regulations and procedures. JPMorgan
shall have no liability to the Issuer or the Guarantors whatsoever if any DTC
participant purchasing a Book-Entry Note fails to settle or delays in settling
its balance with DTC or if DTC fails to perform in any respect.
(b) Issuance
and Purchase of Certificated Notes.
Upon
receipt of issuance instructions with respect to Certificated Notes, JPMorgan
shall: (a) complete each Certificated Note as to principal amount, date of
issue, maturity date, place of payment, and rate or amount of interest (if
such
Note is interest bearing) in accordance with such instructions; (b) countersign
each Certificated Note; and (c) deliver each Certificated Note in accordance
with the Issuer’s instructions, except as otherwise set forth below. Whenever
JPMorgan is instructed to deliver any Certificated Note by mail, JPMorgan shall
strike from the Certificated Note the word “Bearer,” insert as payee the name of
the person so designated by the Issuer and effect delivery by mail to such
payee
or to such other person as is specified in such instructions to receive the
Certificated Note. The Issuer and the Guarantors understand that, in accordance
with the custom prevailing in the commercial paper market, delivery of
Certificated Notes shall be made before the actual receipt of payment for such
Notes in immediately available funds, even if the Issuer instructs JPMorgan
to
deliver a Certificated Note against payment. Therefore, once JPMorgan has
delivered a Certificated Note to the designated recipient, the Issuer and the
Guarantors shall bear the risk that such recipient may fail to remit payment
of
the purchase price of such Note or return such Note to JPMorgan. Delivery of
Certificated Notes shall be subject to the rules of the New York Clearing House
in effect at the time of such delivery. Funds received in payment for
Certificated Notes shall be credited to the Account.
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8. USE
OF SALES PROCEEDS IN ADVANCE OF PAYMENT
JPMorgan
shall not be obligated to credit the Issuer’s Account unless and until payment
of the purchase price of each Note is received by JPMorgan. From time to time,
JPMorgan, in its sole discretion, may permit the Issuer to have use of funds
payable with respect to a Note prior to JPMorgan’s receipt of the sales proceeds
of such Note. If JPMorgan makes a deposit, payment or transfer of funds on
behalf of the Issuer before JPMorgan receives payment for any Note, such
deposit, payment or transfer of funds shall represent an advance by JPMorgan
to
the Issuer to be repaid promptly, and in any event on the same day as it is
made, from the proceeds of the sale of such Note, or by the Issuer or the
Guarantors if such proceeds are not received by JPMorgan.
9. PAYMENT
OF MATURED NOTES
In
the
case of an Extendible Commercial Note, notice that the Issuer will not redeem
any Note on the relative Initial Redemption Date (as defined in the applicable
Extendible Commercial Note Announcement) must be received in writing by JPMorgan
by 11:00 A.M. on such Initial Redemption Date. On any day when a Note matures
or
is prepaid, the Issuer shall transmit, or cause to be transmitted, to the
Account, prior to 2:00 P.M. New York time on the same day, an amount of
immediately available funds sufficient to pay the aggregate principal amount
of
such Note and any applicable interest due. JPMorgan shall receive such funds
as
agent for the holder of the Note and payment to JPMorgan will constitute payment
with regard to the Note. JPMorgan shall pay the interest (if any) and principal
on a Book-Entry Note to DTC in immediately available funds, which payment shall
be by net settlement of JPMorgan’s account at DTC. JPMorgan shall pay
Certificated Notes upon presentment. JPMorgan shall have no obligation under
the
Agreement to make any payment for which there is not sufficient, available
and
collected funds in the Account, and JPMorgan may, without liability to the
Issuer or the Guarantors, refuse to pay any Note that would result in an
overdraft to the Account.
10. OVERDRAFTS
AND RIGHT TO SUBROGATION
(a) Intraday
overdrafts with respect to each Account shall be subject to JPMorgan’s policies
as in effect from time to time.
(b) An
overdraft will exist in an Account if JPMorgan, in its sole discretion, (i)
permits an advance to be made pursuant to Section 8 and, notwithstanding the
provisions of Section 8, such advance is not repaid in full on the same day
as
it is made, or (ii) pays a Note pursuant to Section 9 in excess of the available
collected balance in such Account. Overdrafts shall be subject to JPMorgan’s
established banking practices, including, without limitation, the imposition
of
interest, funds usage charges and administrative fees. The Issuer shall repay
any such overdraft and the related fees and charges no later than the next
business day, together with interest on the overdraft at the rate established
by
JPMorgan for the Account and previously communicated to the Issuer and the
Guarantors, computed from and including the date of the overdraft to the date
of
repayment.
(c) Notwithstanding
anything herein to the contrary, in the event that JPMorgan (i) permits an
advance pursuant to Section 8, and such advance is not repaid in full in
accordance with the terms hereunder, or (ii) pays a Note pursuant to Section
9
in excess of the available collected balance in such account, any and all
covenants, agreements and other obligations of the Issuer and each Guarantor
to
the Holders shall continue to exist and shall run to the benefit of JPMorgan,
and JPMorgan shall be subrogated to the rights of the Holders. In the event
that
any Dealer incurs a liability in respect of, or arising out of, the failure
of a
Holder of a Note to be paid the full amount of such Note when due, such Dealer
shall be subrogated to the rights of such Holder against the Guarantor. Each
Dealer shall be deemed to be a third party beneficiary of the obligations of
the
Guarantor hereunder as required to effect such subrogation.
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11. NO
PRIOR COURSE OF DEALING
No
prior
action or course of dealing on the part of JPMorgan with respect to advances
of
the purchase price or payments of matured Notes shall give rise to any claim
or
cause of action by the Issuer or any of the Guarantors against JPMorgan in
the
event that JPMorgan refuses to pay or settle any Notes for which the Issuer
or
any of the Guarantors has not timely provided funds as required by this
Agreement.
12. RETURN
OF CERTIFICATED NOTES
JPMorgan
will in due course cancel any Certificated Note presented for payment and return
such Note to the Issuer. JPMorgan shall also cancel and return to the Issuer
any
spoiled or voided Certificated Notes. Promptly upon written request of the
Issuer or at the termination of this Agreement, JPMorgan shall destroy all
blank, unissued Certificated Notes in its possession and furnish a certificate
to the Issuer certifying such actions.
13. INFORMATION
FURNISHED BY JPMORGAN
Upon
the
reasonable request of the Issuer, JPMorgan shall promptly provide the Issuer
with information with respect to any Note issued and paid hereunder,
provided,
that
the
Issuer delivers such request in writing and, to the extent applicable, includes
the serial number or note number, principal amount, payee, date of issue,
maturity date, amount of interest (if any) and place of payment of such
Note.
14. REPRESENTATIONS,
WARRANTIES and covenants
(a) Representations.
Each of
the Issuer and Guarantors represents and warrants that: (i) it has the right,
capacity and authority to enter into this Agreement; and (ii) it will comply
with all of its obligations and duties under this Agreement. The Issuer further
represents and agrees that each Note issued and distributed upon its instruction
pursuant to this Agreement shall constitute the Issuer’s representation and
warranty to JPMorgan that such Note is a legal, valid and binding obligation
of
the Issuer, and that such Note is being issued in a transaction which is exempt
from registration under the Securities Act of 1933, as amended, and any
applicable state securities law.
(b) Furnishing
Guaranties.
The
Issuer shall cause (i) any corporation or other entity of which all the stock
or
other interests is or becomes owned by the Issuer, by a wholly-owned Subsidiary
of the Issuer or by the Issuer and one or more wholly-owned Subsidiaries of
the
Issuer other than its finance company Subsidiaries and any foreign Subsidiaries,
that guarantees any indebtedness of the Issuer or any other Subsidiary, other
than guaranties by Subsidiaries of U.S. Home Corporation solely of U.S. Home
Corporation’s obligations as a guarantor under the senior secured credit
facility dated as of June 17, 2005 between the Company and JPMorgan Chase Bank,
N.A. as administrative agent and the other lenders party thereto and (ii) any
other corporation or other entity of which a majority of the voting interest
is
owned by the Issuer or by a corporation or other entity of which a majority
in
voting power of the stock or other interests is owned by the Issuer or by one
or
more Subsidiaries (a “Subsidiary”)
and
which guarantees obligations of the Issuer or other Subsidiaries’ obligations
with regard to the Issuer’s obligations, other than with regard to the Notes,
totaling $75 million or more to become a Guarantor by causing, as promptly
as
practicable, but in any event not later than the earlier of (i) 15 business
days
after the end of the fiscal quarter in which such Subsidiary was formed or
acquired or (ii) the date on which such Subsidiary becomes a guarantor of any
other indebtedness of the Issuer, such Subsidiary to execute and deliver to
JPMorgan a Guaranty in substantially the form of Exhibit C hereto.
5
15. DISCLAIMERS
Neither
JPMorgan nor its directors, officers, employees or agents shall be liable for
any act or omission under this Agreement except in the case of gross negligence
or willful misconduct. IN NO EVENT SHALL JPMORGAN BE LIABLE FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING
BUT
NOT LIMITED TO LOST PROFITS), EVEN IF JPMORGAN HAS BEEN ADVISED OF THE
LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. In
no
event shall JPMorgan be considered negligent in consequence of complying with
DTC’s rules, regulations and procedures. The duties and obligations of JPMorgan,
its directors, officers, employees or agents shall be determined by the express
provisions of this Agreement and they shall not be liable except for the
performance of such duties and obligations as are specifically set forth herein
and no implied covenants shall be read into this Agreement against them. Neither
JPMorgan nor its directors, officers, employees or agents shall be required
to
ascertain whether any issuance or sale of any Notes (or any amendment or
termination of this Agreement) has been duly authorized or is in compliance
with
any other agreement to which the Issuer is a party (whether or not JPMorgan
is
also a party to such agreement).
16. INDEMNIFICATION
The
Issuer agrees to indemnify and hold harmless JPMorgan, its directors, officers,
employees and agents from and against any and all liabilities, claims, losses,
damages, penalties, costs and expenses (including attorneys’ fees and
disbursements) suffered or incurred by or asserted or assessed against JPMorgan
or any of them arising out of JPMorgan or any of them acting as the Issuer’s
agent under this Agreement, except for such liability, claim, loss, damage,
penalty, cost or expense resulting from the gross negligence or willful
misconduct of JPMorgan, its directors, officers, employees or agents. This
indemnity will survive the termination of this Agreement.
17. OPINION
OF COUNSEL
The
Issuer shall deliver to JPMorgan all documents it may reasonably request
relating to their corporate existence and authority for this Agreement,
including, without limitation, opinions of counsel, substantially in the form
of
Exhibits E through G hereto.
18. NOTICES
All
notices, confirmations and other communications hereunder shall (except to
the
extent otherwise expressly provided) be in writing and shall be sent by
first-class mail, postage prepaid, by telecopier or by hand, addressed as
follows, or to such other address as the party receiving such notice shall
have
previously specified to the party sending such notice:
6
| If to the Issuer: |
Lennar
Corporation
|
000
Xxxxxxxxx 000xx
Xxxxxx
Xxxxx,
XX
00000
Attention:
Treasurer
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
If
to a
Guarantor, to its address set forth under its signature to its
Guaranty.
If
to
JPMorgan concerning the daily issuance and redemption of Notes:
Attention:
Commercial Paper Operations
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX 00000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
| Allother: |
Attention:
Commercial Paper Client Services
|
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX 00000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
19. COMPENSATION
The
Issuer shall pay compensation for services pursuant to this Agreement in
accordance with the pricing schedules furnished by JPMorgan to the Issuer from
time to time and upon such payment terms as the parties shall determine. The
Issuer shall also reimburse JPMorgan for any fees and charges imposed by DTC
with respect to services provided in connection with the Book-Entry
Notes.
20. BENEFIT
OF AGREEMENT
This
Agreement is solely for the benefit of the parties hereto and no other person
shall acquire or have any right under or by virtue hereof.
21. TERMINATION
This
Agreement may be terminated at any time by either party by written notice to
the
other, but such termination shall not affect the respective liabilities of
the
parties hereunder arising prior to such termination.
22. FORCE
MAJEURE
In
no
event shall JPMorgan be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond JPMorgan’s control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, strikes or work stoppages for any reason,
embargo, government action, including any laws, ordinances, regulations or
the
like which restrict or prohibit the providing of the services contemplated
by
this Agreement, inability to obtain material, equipment, or communications
or
computer facilities, or the failure of equipment or interruption of
communications or computer facilities, and other causes beyond JPMorgan’s
control whether or not of the same class or kind as specifically named
above.
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23. ENTIRE
AGREEMENT
This
Agreement, together with the exhibits attached hereto, constitutes the entire
agreement between JPMorgan, the Issuer and the Guarantors with respect to the
subject matter hereof and supersedes in all respects all prior proposals,
negotiations, communications, discussions and agreements among the parties
concerning the subject matter of this Agreement.
24. WAIVERS
AND AMENDMENTS
No
failure or delay on the part of any party in exercising any power or right
under
this Agreement shall operate as a waiver, nor does any single or partial
exercise of any power or right preclude any other or further exercise, or the
exercise of any other power or right. Any such waiver shall be effective only
in
the specific instance and for the purpose for which it is given. No amendment,
modification or waiver of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by the Issuer and
JPMorgan.
25. BUSINESS
DAY
Whenever
any payment to be made hereunder shall be due on a day which is not a business
day for JPMorgan, then such payment shall be made on JPMorgan’s next succeeding
business day.
26. COUNTERPARTS
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and such counterparts together shall constitute but one
instrument.
27. HEADINGS
The
headings in this Agreement are for purposes of reference only and shall not
in
any way limit or otherwise affect the meaning or interpretation of any of the
terms of this Agreement.
28. GOVERNING
LAW
This
Agreement and the Notes shall be governed by and construed in accordance with
the internal laws of the State of New York, without regard to the conflict
of
laws provisions thereof.
29. JURISDICTION
AND VENUE
Each
party hereby irrevocably and unconditionally submits to the jurisdiction of
the
United States District Court for the Southern District of New York and any
New
York State court located in the Borough of Manhattan in the City of New York
and
of any appellate court from any thereof for the purposes of any legal suit,
action or proceeding arising out of or relating to this Agreement (a
“Proceeding”). Each party hereby irrevocably agrees that all claims in respect
of any Proceeding may be heard and determined in such Federal or New York State
court and irrevocably waives, to the fullest extent it may effectively do so,
any objection it may now or hereafter have to the laying of venue of any
Proceeding in any of the aforementioned courts and the defense of an
inconvenient forum to the maintenance of any Proceeding.
8
30. WAIVER
OF TRIAL BY JURY
EACH
PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT
OF
OR RELATING TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
31. ACCOUNT
CONDITIONS
Each
Account shall be subject to JPMorgan’s account conditions, as in effect from
time to time.
32. GUARANTY
PROVISIONS
(a) Unconditional
Guaranty.
Each
Guarantor hereby jointly and severally, unconditionally and irrevocably
guarantees to each holder of a Note authenticated and delivered by JPMorgan
(“Holder”
or
“Holder
of Note”),
that:
(i) all amounts due with respect to the Notes shall be duly and punctually
paid
in full when due, whether at maturity, by acceleration or otherwise, and
interest on the overdue principal and (to the extent permitted by law) interest,
if any, on the Notes and all other obligations of the Issuer or the Guarantors
to the Holders hereunder or thereunder and all other obligations shall be
promptly paid in full or performed, all in accordance with the terms hereof
and
thereof; and (ii) in case of any extension of time of payment or renewal of
any
Notes or any of such other obligations, the same shall be promptly paid in
full
when due or performed in accordance with the terms of the extension or renewal,
whether at maturity, by acceleration or otherwise. Failing payment when due
of
any amount so guaranteed, or failing performance of any other obligation of
the
Issuer to the Holders under this Agreement or under the Notes, for whatever
reason, each Guarantor shall be obligated to pay, or to perform or cause the
performance of, the same immediately. An event of default hereunder or the
Notes
shall constitute an event of default under each Guaranty, and shall entitle
the
Holders of Notes to accelerate the obligations of the Guarantors hereunder
in
the same manner and to the same extent as the obligations of the Issuer.
Except
as
provided below, each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity
or
enforceability of the Notes or this Agreement, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Issuer, any action to enforce the same,
whether or not a Guaranty is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or
defense of a guarantor. Each of the Guarantors hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a court in
the
event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest, notice and all demands whatsoever
and covenants that its Guaranty shall not be discharged except by complete
performance of the obligations contained in the Notes, this Agreement and each
Guaranty. Each Guaranty is a guaranty of payment and not of collection.
No
stockholder, officer, director, employee or incorporator, past, present or
future, of any Guarantor, as such, shall have any personal liability under
its
Guaranty by reason of his, her or its status as such stockholder, officer,
director, employee or incorporator.
9
Each
Guarantor that makes a payment or distribution under its Guaranty shall be
entitled to a contribution from each other Guarantor in an amount pro rata,
based on the net assets of each Guarantor, determined in accordance with GAAP.
(b) Limitations
on Guaranties; Release or Suspension of Particular Guarantors’
Obligations.
The
obligations of each Guarantor under its Guaranty will be limited to the maximum
amount which, after giving effect to all other contingent and fixed liabilities
of such Guarantor and after giving effect to any collections from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under its Guaranty or pursuant to its contribution
obligations under this Agreement, will result in the obligations of such
Guarantor under its Guaranty not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
The
Guarantors shall include (i) each Guarantor that has executed a Guaranty on
or
before the dates of this Agreement and (ii) each of the Issuer’s subsidiaries
that in the future executes a Guaranty in which such subsidiary agrees to be
bound by the terms hereof as a Guarantor.
If
any
Guarantor is released from its Guaranty, such Guarantor shall be automatically
released from its obligations as Guarantor, and from and after such date, such
Guarantor shall cease to constitute a Guarantor. JPMorgan shall have no
responsibility to determine whether such release is authorized or permitted
under this Agreement, the Guaranty or any other agreement which a Guarantor
may
be a party thereto.
The
obligations of a Guarantor will be automatically suspended, and such Guarantor
shall not constitute a Guarantor and shall not have any obligations with regard
to the Notes during any period when the principal amount of the Issuer’s
obligations and any subsidiary’s obligations with regard to the Issuer’s
obligations, in each case other than the Notes and other indebtedness containing
provisions similar to this, that the Guarantor is guaranteeing total less than
$75 million, except, subject to Section 32(d), that the obligations of a
Guarantor will not be suspended, and the Guarantor will continue to be obligated
with regard to any Notes that have been issued before the Master Note is amended
to reflect that newly issued Notes will not be guaranteed by some or any of
the
Issuer’s wholly-owned subsidiaries after the date of such amendment or any later
specified date.
(c) Execution
and Delivery of Guaranty.
By
executing a Guaranty, each Guarantor is agreeing to be bound by the provisions
of this Section 32 and all the other provisions of this Agreement that are
applicable to Guarantors. Such Guaranty has been executed on behalf of each
Guarantor by either manual or facsimile signature of an officer of each
Guarantor, each of whom, in each case, shall have been duly authorized to so
execute by all requisite corporate action. The validity and enforceability
of
any Guaranty shall not be affected by the fact that it is not affixed to any
Note or Notes.
If
an
officer of a Guarantor whose signature is on this Agreement or a Guaranty no
longer holds that office at the time JPMorgan authenticates the Note on which
such Guaranty is endorsed or at any time thereafter, such Guarantor’s Guaranty
of such Note shall be valid nevertheless.
The
delivery of any Note by JPMorgan, after the authentication thereof hereunder,
shall constitute due delivery of any Guaranty set forth in this Agreement on
behalf of each Guarantor.
10
(d) Release
of a Guarantor due to Extraordinary Events.
If no
default exists or would exist under this Agreement, upon the sale or disposition
of all of the capital stock of a Guarantor by the Issuer or a subsidiary of
the
Issuer, or upon the consolidation or merger of a Guarantor with or into any
person (in each case, other than to the Issuer or an affiliate of the Issuer
or
subsidiary), or if any Guarantor is dissolved or liquidated, such Guarantor
and
each subsidiary of such Guarantor that is also a Guarantor shall be deemed
released from all obligations under this Section 32 without any further action
required on the part of JPMorgan or any Holder; provided that if the Guarantor
is a Designated Guarantor (as listed in Exhibit D), the obligations of such
Guarantor will not be suspended, and such Guarantor will continue to be
obligated with regard to any Notes that have been issued before the Master
Note
is amended to reflect that newly issued Notes will not be guaranteed by some
or
any of such Guarantors after such amendment or any later specified
date.
JPMorgan
shall execute any documents reasonably requested by the Issuer or a Guarantor
in
order to evidence the release of such Guarantor from its obligations under
its
Guaranty endorsed on the Notes under this Section 32. JPMorgan shall not be
held
liable for complying with any such request.
Nothing
contained in this Agreement or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Issuer or another
Guarantor or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Issuer or another
Guarantor
(e) Waiver
of Subrogation.
Until
this Agreement is discharged and all of the Notes are discharged and paid in
full, each Guarantor hereby irrevocably waives and agrees not to exercise any
claim or other rights which it may now or hereafter acquire against the Issuer
that arise from the existence, payment, performance or enforcement of the
Issuer’s obligations under the Notes or this Agreement and such Guarantor’s
obligations under each Guaranty and this Agreement, in any such instance
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in
any
claim or remedy of the Holders against the Issuer, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Issuer,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence
and
any amounts owing to the Holders of Notes under the Notes shall not have been
paid in full, such amount shall have been deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders
and shall forthwith be paid to JPMorgan for the benefit of such Holders to
be
credited and applied to the obligations in favor of the Holders, whether matured
or unmatured, in accordance with the terms of this Agreement. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Agreement and that the waiver set
forth in this Section 32(e) is knowingly made in contemplation of such benefits.
(f) No
Set-Off.
Each
payment to be made by a Guarantor hereunder in respect of the obligations under
its Guaranty shall be payable in the currency or currencies in which such
obligations are denominated, and shall be made without set-off, counterclaim,
reduction or diminution of any kind or nature.
(g) Obligations
Absolute.
The
obligations of each Guarantor hereunder are and shall be absolute and
unconditional and any monies or amounts expressed to be owing or payable by
each
Guarantor hereunder which may not be recoverable from such Guarantor on the
basis of a Guaranty shall be recoverable from such Guarantor as a primary
obligor and principal debtor in respect thereof.
11
(h) Obligations
Not Reduced.
The
obligations of each Guarantor hereunder shall not be satisfied, reduced or
discharged except solely by the payment of such principal, premium, if any,
interest, fees and other monies or amounts as may at any time prior to discharge
of this Agreement pursuant hereto or become owing or payable under or by virtue
of or otherwise in connection with the Notes or this Agreement.
(i) Obligations
Reinstated.
The
obligations of each Guarantor hereunder shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payment which would
otherwise have reduced the obligations of any Guarantor hereunder (whether
such
payment shall have been made by or on behalf of the Issuer or by or on behalf
of
a Guarantor) is rescinded or reclaimed from JPMorgan or any of the Holders
upon
the insolvency, bankruptcy, liquidation or reorganization of the Issuer or
any
Guarantor or otherwise, all as though such payment had not been made. If demand
for, or acceleration of the time for, payment by the Issuer is stayed upon
the
insolvency, bankruptcy, liquidation or reorganization of the Issuer, all such
indebtedness otherwise subject to demand for payment or acceleration shall
nonetheless be payable by each Guarantor as provided herein.
(j) Obligations
Not Affected.
Except
as otherwise provided, the obligations of each Guarantor hereunder shall not
be
affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by any Guarantor or any
of
the Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against any Guarantor hereunder or might operate to release
or otherwise exonerate any Guarantor from any of its obligations hereunder
or
otherwise affect such obligations, whether occasioned by default of any of
the
Holders or otherwise, including, without limitation:
(i) any
limitation of status or power, disability, incapacity or other circumstance
relating to the Issuer or any other person, including any insolvency,
bankruptcy, liquidation, reorganization, readjustment, composition, dissolution,
winding up or other proceeding involving or affecting the Issuer or any other
person;
(ii) any
irregularity, defect, unenforceability or invalidity in respect of any
indebtedness or other obligation of the Issuer or any other person under this
Agreement, the Notes or any other document or instrument;
(iii) any
failure of the Issuer, whether or not without fault on its part, to perform
or
comply with any of the provisions of this Agreement or the Notes, or to give
notice thereof to a Guarantor;
(iv) the
taking or enforcing or exercising or the refusal or neglect to take or enforce
or exercise any right or remedy from or against the Issuer or any other Person
or their respective assets or the release or discharge of any such right or
remedy;
(v) the
granting of time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to the Issuer or any other Person;
12
(vi) any
change in the time, manner or place of payment of, or in any other term of,
any
of the Notes, or any other amendment, variation, supplement, replacement or
waiver of, or any consent to departure from, any of the Notes or this Agreement,
including, without limitation, any increase or decrease in any amount due with
respect to any of the Notes;
(vii) any
change in the ownership, control, name, objects, businesses, assets, capital
structure or constitution of the Issuer or a Guarantor;
(viii) any
merger or amalgamation of the Issuer or a Guarantor with any Person or Persons;
(ix) the
occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority
or
court amending, varying, reducing or otherwise affecting, or purporting to
amend, vary, reduce or otherwise affect, any of the Obligations or the
obligations of a Guarantor under its Guaranty; and
(x) any
other
circumstance (other than by complete, irrevocable payment) that might otherwise
constitute a legal or equitable discharge or defense of the Issuer under this
Agreement or the Notes or of a Guarantor in respect of its Guaranty hereunder.
(k) Waiver.
Without
in any way limiting the provisions of Section 32(a) hereof, each Guarantor
hereby waives notice of acceptance hereof, notice of any liability of any
Guarantor hereunder, notice or proof of reliance by the Holders upon the
obligations of any Guarantor hereunder, and diligence, presentment, demand
for
payment on the Issuer, protest, notice of dishonor or non-payment of any of
the
Obligations, or other notice or formalities to the Issuer or any Guarantor
of
any kind whatsoever.
(l) Dealing
with the Issuer and Others.
Any
Holder, without releasing, discharging, limiting or otherwise affecting in
whole
or in part the obligations and liabilities of any Guarantor hereunder and
without the consent of or notice to any Guarantor, may with regard to the Notes
it holds (but not other Notes):
(i) grant
time, renewals, extension, compromises, concessions, waivers, releases,
discharges and other indulgences to the Issuer or any other Person;
(ii) take
or
abstain from taking security or collateral from the Issuer or from perfecting
security or collateral of the Issuer;
(iii) release,
discharge, compromise, realize, enforce or otherwise deal with or do any act
or
thing in respect of (with or without consideration) any and all collateral,
mortgages or other security given by the Issuer or any third party with respect
to the obligations or matters contemplated by this Agreement or the Notes;
(iv) accept
compromises or arrangements from the Issuer;
(v) apply
all
monies at any time received from the Issuer upon such part of the Notes as
the
Holder may see fit or change any such application in whole or in part from
time
to time as the Holder may see fit; and
(vi) otherwise
deal with, or waive or modify its right to deal with, the Issuer and all other
Persons as the Holder may see fit.
13
(m) Default
and Enforcement.
If any
Guarantor fails to pay in accordance with Section 32(a) hereof, each Holder
may
proceed in its name in the enforcement of the Guaranty of any such Guarantor
with respect to the Notes held by such Holder and such Guarantor’s obligations
thereunder and hereunder by any remedy provided by law, whether by legal
proceedings or otherwise, and to recover from such Guarantor any and all sums
due with regard to these Notes.
(n) Amendment,
Etc.
No
amendment, modification or waiver of any provision of this Agreement relating
to
any Guarantor or consent to any departure by any Guarantor or any other Person
from any such provision will in any event be effective or affect the obligation
of any other Guarantor with regard to any Notes unless it is signed by such
Guarantor and the Holders of these Notes.
(o) Acknowledgment.
Each
Guarantor hereby acknowledges communication of the terms of this Agreement
and
the Notes and consents to and approves of the same.
(p) No
Merger or Waiver; Cumulative Remedies.
No
Guaranty shall operate by way of merger of any of the obligations of a Guarantor
under any other agreement, including, without limitation, this Agreement. No
failure to exercise and no delay in exercising, on the part of any Holders,
any
right, remedy, power or privilege hereunder or under the Notes, shall operate
as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege under this Agreement or the Notes preclude any other or
further exercise thereof or the exercise of any other right, remedy, power
or
privilege. The rights, remedies, powers and privileges in the Guaranty and
under
this Agreement, the Notes and any other document or instrument between a
Guarantor and/or the Issuer and a Holder or JPMorgan are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
(q) Survival
of Obligations.
Without
prejudice to the survival of any of the other obligations of each Guarantor
hereunder, the obligations of each Guarantor under Section 32(a) shall survive
the payment in full of the Notes and shall be enforceable against such Guarantor
without regard to and without giving effect to any defense, right of offset
or
counterclaim available to or which may be asserted by the Issuer or any
Guarantor.
(r) Guaranty
in Addition to Other Obligations.
The
obligations of each Guarantor under its Guaranty and this Agreement are in
addition to and not in substitution for any other obligations to JPMorgan or
to
any of the Holders in relation to this Agreement or the Notes and any guaranties
or security at any time held by or for the benefit of any of them.
(s) Severability.
Any
provision of this Section 32 which is prohibited or unenforceable in any
jurisdiction or with regard to any Guarantor shall not invalidate the remaining
provisions and any such prohibition or unenforceability in any jurisdiction
or
with regard to any Guarantor shall not invalidate or render unenforceable such
provision in any other jurisdiction or with regard to any other Guarantor unless
its removal would substantially defeat the basic intent, spirit and purpose
of
this Agreement and this Section 32.
(t) Successors
and Assigns.
Each
Guaranty shall be binding upon and inure to the benefit of each Guarantor and
each Holder and their respective successors and permitted assigns, except that
no Guarantor may assign any of its obligations hereunder or thereunder.
14
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on
their behalf by duly authorized officers as of the day and year first-above
written.
|
JPMORGAN
CHASE BANK, N.A.
|
LENNAR
CORPORATION
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx |
By:
|
/s/ Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx Xxxxxx |
Name:
|
Xxxxx X. Xxxxx | |
|
Title:
|
Client Service Manager |
Title:
|
Vice President and Chief Financial Officer | |
|
Date:
|
March 29, 2006 |
Date:
|
March 29, 2006 | |
15
