EXECUTION COPY
LNR PROPERTY CORPORATION
$300,000,000
7.25% SENIOR SUBORDINATED NOTES DUE 2013
PURCHASE AGREEMENT
October 15, 2003
DEUTSCHE BANK SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
LNR Property Corporation ("LNR"), a Delaware corporation, hereby
confirms its agreement with Deutsche Bank Securities Inc., Citigroup Global
Markets Inc., Banc of America Securities LLC and Fleet Securities, Inc. (each,
an "Initial Purchaser" and collectively, the "Initial Purchasers"), as set forth
below.
1. The Notes. Subject to the terms and conditions herein contained,
LNR proposes to issue and sell to the Initial Purchasers $300,000,000 aggregate
principal amount of LNR's 7.25% Senior Subordinated Notes due 2013 (the
"Notes"). The Notes are to be issued pursuant to the terms of an Indenture (the
"Indenture") between LNR and U.S. Bank Trust National Association, as trustee
(the "Trustee").
The Notes will be offered and sold to you without being registered
under the Securities Act of 1933, as amended (the "Act"), in reliance on
exemptions therefrom.
In connection with the sale of the Notes, LNR has prepared an
offering memorandum dated October 15, 2003 (including the information
incorporated by reference therein, the "Memorandum"), setting forth or
incorporating a description of the terms of the Notes, the terms of the offering
of the Notes, a description of LNR and any material developments relating to LNR
occurring after the date of the most recent historical financial statements
incorporated by reference therein. Unless stated to the contrary, all references
herein to the Memorandum are to the Memorandum on the date hereof and shall not
be deemed to include any amendment or supplement thereto subsequent to the date
hereof and any references herein to the terms "amend," "amendment" or
"supplement" with respect to the Memorandum shall be deemed to refer to and
include any information filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") subsequent to the date hereof which is incorporated
by reference therein. LNR hereby confirms that it has authorized the use of the
Memorandum,
and any amendment or supplement thereto, in connection with the resale of the
Notes by the Initial Purchasers.
LNR understands that the Initial Purchasers propose to make an
offering of the Notes only on the terms and in the manner set forth in the
Memorandum and Section 8 hereof as soon as the Initial Purchasers deem advisable
after this Agreement has been executed and delivered, to persons in the United
States whom the Initial Purchasers reasonably believe to be qualified
institutional buyers ("Qualified Institutional Buyers" or "QIBs") as defined in
Rule 144A under the Act, as such rule may be amended from time to time ("Rule
144A"), and outside the United States to certain persons in reliance on
Regulation S under the Act ("Regulation S").
The Initial Purchasers and the direct and indirect transferees of
the Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration Rights
Agreement"), to be dated as of the Closing Date (as defined in Section 3 below),
pursuant to which LNR will agree, among other things, to file one or more
registration statements (each, a "Registration Statement") with the Securities
and Exchange Commission (the "Commission") registering under the Act resales of
the Notes or the exchange by LNR of Exchange Notes (as defined in the
Registration Rights Agreement) for the Notes.
On October 15, 2003, LNR commenced an offer to purchase (the "Debt
Tender Offer") all of its outstanding 10-1/2% Senior Subordinated Notes due
2009. The Debt Tender Offer is being made pursuant to an Offer to Purchase,
dated October 15, 2003 as amended and supplemented from time to time, and the
Letter of Transmittal.
2. Representations and Warranties of LNR. LNR represents and
warrants to and agrees with the Initial Purchasers that:
(a) Neither the Memorandum nor any amendment or supplement thereto
as of the date thereof and at all times subsequent thereto up to the Closing
Date contained or will contain any untrue statement of a material fact or
omitted or will omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 2(a) do not apply to statements or omissions made in reliance upon and
in conformity with information relating to the Initial Purchasers or to their
resale of the Notes furnished to LNR in writing by the Initial Purchasers
expressly for use in the Memorandum or any amendment or supplement thereto.
(b) LNR 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 Memorandum. Each of the Subsidiaries (as defined
below) and the Investment Affiliates (as defined below) has been duly organized
and is validly existing as a corporation, limited liability company or
partnership, as applicable, in good standing or active status 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 Memorandum. Each of LNR, the Subsidiaries and the Investment
Affiliates is duly qualified to transact business in all
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jurisdictions in which the conduct of its 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 LNR and the Subsidiaries taken as a whole or the business,
management, properties, assets, rights, operations or prospects of LNR and the
Subsidiaries taken as a whole (a "Material Adverse Effect"). The Subsidiaries
listed on Exhibit 21.1 to LNR's Annual Report on Form 10-K for the year ended
November 30, 2002 constitute all the Subsidiaries at November 30, 2002 other
than Subsidiaries that, if considered in the aggregate as a single subsidiary,
would not have constituted a "significant subsidiary" of LNR at that date,
within the meaning of Rule 1-02(w) of the Commission's Regulation S-X. There are
no such "significant subsidiaries" of LNR other than the Designated Subsidiaries
(as defined below) and Investment Affiliates (as defined below). The Land
Partnerships (as defined below) and Madison Square (as defined below) constitute
all the Investment Affiliates. The outstanding shares of capital stock of each
of the Subsidiaries that is a corporation have been duly authorized and validly
issued, are fully paid and non-assessable and all of the outstanding ownership
interests in all of the Subsidiaries are owned by LNR or another Subsidiary
(except to the extent set forth as "minority interests" on the consolidated
balance sheet of LNR) free and clear of all liens, encumbrances and equities and
claims (other than liens created pursuant to the Credit Agreement (as defined
below)); 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 interests in the Subsidiaries or the
Investment Affiliates are outstanding. LNR indirectly owns a 50% interest in
Lennar Land Partners and a 50% interest in Lennar Land Partners II, each a
Florida general partnership (each, a "Land Partnership" and collectively, the
"Land Partnerships"). LNR indirectly owns a 25.78% interest in Madison Square
Company, LLC, a limited liability company organized under the laws of the state
of Delaware ("Madison Square"). LNR's interests in the Land Partnerships and in
Madison Square have been duly authorized and validly issued and are owned by LNR
or a Subsidiary indirectly wholly owned by LNR, 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 LNR, as such term is
defined in Rule 405 under the Act. For purposes of this Agreement, the following
Subsidiaries are "Designated Subsidiaries": Leisure Colony Management Corp., LNR
Affordable Housing Inc., Lennar Capital Services, Inc., LNR Land Partners SUB,
Inc., LNR Land Partners SUB II, Inc., LNR DSHI Interhold, Inc., Delaware
Securities Holdings, Inc., LNR CMBS Holdings, Inc., LNR Madison Square, Inc. and
LNR Florida Funding, Inc. For purposes of this Agreement, an "Investment
Affiliate" means any entity in which LNR, directly or indirectly, has an
ownership interest, (i) the financial results of which are not consolidated
under generally accepted accounting principles with the financial results of LNR
on the consolidated financial statements of LNR and (ii) which is a "significant
subsidiary" of LNR, as such term is defined within Rule 1-02(w) of the
Commission's Regulation S-X. For purposes of this Agreement, the "Credit
Agreement" means the Third Amended and Restated Revolving Credit Agreement dated
as of November 27, 2002 among LNR, certain Subsidiaries, the parties thereto in
their capacities as lenders thereunder and Bank of America N.A., as
administrative agent.
(c) The information set forth under the caption "Capitalization" in
the Memorandum is true and correct as of its date (after giving effect to any
applicable adjustments described in the caption). The outstanding shares of
LNR's Common Stock, par value $.10 per share ("Common Stock"), and LNR'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-
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assessable and no preemptive rights of stockholders exist with respect to the
capital stock or any other securities of LNR or the issue and sale thereof.
Neither the offering or sale of the Notes as contemplated by this Agreement nor
the filing of any Registration Statement contemplated by the Registration Rights
Agreement, gives rise or shall give rise to any rights, other than those that
have been waived or satisfied, for or relating to the registration of any other
securities of LNR.
(d) LNR has all requisite corporate power and authority to execute,
deliver and perform each of its obligations under the Notes, the Exchange Notes
and the Private Exchange Notes (as defined in the Registration Rights
Agreement). LNR has duly authorized the execution, delivery and performance of
the Notes, the Exchange Notes and the Private Exchange Notes. The Notes, when
issued, and the Exchange Notes and the Private Exchange Notes, if and when
issued, shall be in the form contemplated by the Indenture. The Notes, the
Exchange Notes and the Private Exchange Notes, when executed by LNR and
authenticated by the Trustee in accordance with the provisions of the Indenture
and, in the case of the Notes, when delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement or, in the case of the
Exchange Notes or Private Exchange Notes, when issued and delivered in exchange
for the Notes in accordance with the Registration Rights Agreement, will have
been duly executed, issued and delivered and shall constitute valid and legally
binding obligations of LNR (assuming the due authorization, execution and
delivery of the Indenture by the Trustee and the due authorization and delivery
of the Notes, the Exchange Notes and the Private Exchange Notes by the Trustee
in accordance with the Indenture), entitled to the benefits of the Indenture,
and enforceable against LNR 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) LNR has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Indenture. The Indenture meets the
requirements for qualification under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). The Indenture has been duly and validly authorized
by LNR, and, when duly executed and delivered by LNR (assuming the due
authorization, execution and delivery by the Trustee), will constitute a valid
and legally binding agreement of LNR, enforceable against LNR 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, the Notes, and the Registration Rights
Agreement conforms in all material respects to the description thereof contained
or incorporated by reference in the Memorandum.
(g) LNR has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights Agreement. The
Registration Rights Agreement has been duly and validly authorized by LNR and,
when executed and delivered by
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LNR (assuming due authorization, execution and delivery by the Initial
Purchasers), will constitute a valid and legally binding agreement of LNR,
enforceable against LNR in accordance with its terms, except that (A) 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) and (B) any rights to indemnity or
contribution thereunder may be limited by federal and state securities laws and
public policy considerations.
(h) LNR has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the consummation by LNR of
the transactions contemplated hereby have been duly and validly authorized by
LNR. This Agreement has been duly executed and delivered by LNR.
(i) The consolidated financial statements of LNR and the
Subsidiaries, together with related notes and schedules incorporated by
reference in the Memorandum present fairly the financial position and the
results of operations and cash flows of LNR 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 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 Memorandum
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 LNR. The pro forma financial statements and other pro forma
financial information included or incorporated by reference in the Memorandum
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 LNR, 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) Deloitte & Touche LLP, who has certified certain of the
financial statements of LNR as set forth in its reports incorporated by
reference in the Memorandum, is an independent public accountant as required by
the Act and the applicable rules and regulations thereunder.
(k) There is no action, suit, claim or proceeding pending or, to the
knowledge of LNR, threatened against LNR, any of the Subsidiaries or Investment
Affiliates before any court or administrative agency or otherwise which if
determined adversely to LNR, any of its Subsidiaries or Investment Affiliates
might result in any material adverse change in the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of LNR and the Subsidiaries taken as a whole or might
prevent the consummation of the transactions contemplated hereby or in the
Indenture, the Notes or the Registration Rights Agreement, except as set forth
in the Memorandum.
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(l) LNR, the Subsidiaries and the Investment Affiliates have good
and marketable title to all of the properties and assets described in the
Memorandum, subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except as described in the Memorandum or which are not material in amount.
LNR, the Subsidiaries and the Investment Affiliates occupy their leased
properties under valid and binding leases conforming in all material respects to
the description thereof set forth in the Memorandum.
(m) LNR, the Subsidiaries and the Investment Affiliates have timely
filed all Federal, State, local and foreign tax returns that 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 LNR and the Subsidiaries have been adequately provided for in the
consolidated financial statements of LNR, and LNR 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 Memorandum 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 LNR 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 LNR, the
Subsidiaries or the Investment Affiliates, other than transactions in the
ordinary course of business and changes and transactions described in the
Memorandum. LNR, the Subsidiaries and the Investment Affiliates have no material
contingent obligations that are not disclosed in LNR's financial statements
which are incorporated by reference in the Memorandum.
(o) Neither LNR, nor any of the Subsidiaries or Investment
Affiliates is or with the giving of notice or lapse of time or both, will be, in
violation of or in default under its certificate of incorporation 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 LNR and its Subsidiaries taken as a
whole or the business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of LNR and the Subsidiaries
taken as a whole. The execution and delivery of this Agreement, the Indenture,
the Notes, and the Registration Rights Agreement, the issuance and sale of the
Notes to the Initial Purchasers by LNR pursuant to this Agreement, the issuance
by LNR of the Exchange Notes and the Private Exchange Notes upon the exchange of
the Notes contemplated by the Registration Rights Agreement, the consummation of
the Debt Tender Offer and the consummation of the transactions herein and
therein contemplated and the fulfillment of the terms hereof and thereof shall
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under (or an event that 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 LNR, any Subsidiary or Investment Affiliate with respect to, any
indenture, mortgage, deed of trust or other agreement or
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instrument to which LNR, any Subsidiary or Investment Affiliate is a party, or
of the certificate of incorporation or by-laws or other comparable documents of
LNR, any Subsidiary or Investment Affiliate or any order, rule or regulation
applicable to LNR, any Subsidiary or Investment Affiliate 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 LNR
of this Agreement, the Indenture, the Notes, the Registration Rights Agreement,
the consummation of the Debt Tender Offer and the consummation of the
transactions herein and therein contemplated has been obtained or made and is in
full force and effect, except for (A) the qualification of the Indenture under
the Trust Indenture Act and compliance with state securities or Blue Sky laws,
in each case as contemplated by the Registration Rights Agreement, (B) in the
case of performance of the Registration Rights Agreement, the filing with the
Commission of, and the receipt of an order of the Commission declaring
effective, the Exchange Offer Registration Statement or any Shelf Registration
Statement (each as defined in the Registration Rights Agreement), and (C) such
additional steps as may be necessary to qualify the Notes for offering by the
Initial Purchasers under state securities or Blue Sky laws.
(q) Each of LNR, the Subsidiaries and the Investment Affiliates
holds all material licenses, certificates and permits (collectively, "Permits")
from governmental authorities that 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 LNR nor any of the
Subsidiaries or Investment Affiliates has infringed any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to the
business of LNR and the Subsidiaries taken as a whole. LNR knows of no material
infringement by others of patents, patent rights, trade names, trademarks or
copyrights owned by or licensed to LNR or any of the Subsidiaries or Investment
Affiliates.
(r) Neither LNR, nor to LNR'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 Notes to
facilitate the sale or resale of the Notes. LNR acknowledges that the Initial
Purchasers may engage in stabilizing transactions in the Notes in accordance
with Regulation M under the Exchange Act.
(s) Neither LNR nor any Subsidiary is, and after giving effect to
the offering and sale of the Notes and the application of the proceeds as
described in the Memorandum will not be, 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) LNR 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
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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 LNR 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 Notes 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.
(v) Except as described in the Memorandum or as would not,
individually or in the aggregate, have a Material Adverse Effect, (i) each of
LNR, the Subsidiaries and the Investment Affiliates is in compliance with and
not subject to liability under applicable Environmental Laws (as defined below),
(ii) each of LNR, the Subsidiaries and the Investment Affiliates has made all
filings and provided all notices required under any applicable Environmental
Law, and is and has at all times since their issuance been in compliance with
all Permits required under any applicable Environmental Laws and each such
filing, notice and Permit 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 LNR, threatened against LNR, any
Subsidiary or Investment Affiliates 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 LNR, any Subsidiary or any Investment Affiliate, (v) neither LNR,
nor any Subsidiary or Investment Affiliate 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 LNR
or any Subsidiary or Investment Affiliates is (A) listed or, to the knowledge of
LNR, 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 threatened releases therefrom.
(w) There is no strike, labor dispute, slowdown or work stoppage
with the employees of LNR, the Subsidiaries or the Investment Affiliates that is
pending or, to the knowledge of LNR, threatened, that would have a Material
Adverse Effect.
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(x) LNR, its Subsidiaries and the Investment Affiliates 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) LNR 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 LNR would have any
liability; LNR 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 LNR 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 LNR's knowledge, there are no affiliations or
associations between any member of the NASD and any of LNR's officers, directors
or 5% or greater security holders, except as set forth in the Memorandum.
(aa) Neither LNR nor any of its Affiliates (as defined in Rule
501(b) of Regulation D under the Act) has directly, or through any agent, (i)
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of any "security" (as defined in the Act) which is or could be
integrated with the sale of the Notes in a manner that would require the
registration under the Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
(bb) Assuming the accuracy of the representations and warranties of
the Initial Purchasers in Section 8 hereof, it is not necessary in connection
with the offer, sale and delivery of the Notes to the Initial Purchasers in the
manner contemplated by this Agreement to register any of the Notes under the Act
or to qualify the Indenture under the Trust Indenture Act.
(cc) The Notes are not of the same class (within the meaning of Rule
144A) as any class of LNR's securities which are listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted in a U.S.
automated inter-dealer quotation system.
(dd) LNR has complied with all provisions of Section 517.075 Florida
Statutes, relating to doing business with the Government of Cuba or with any
person or affiliate located in Cuba.
(ee) Except as disclosed in the Memorandum there are no business
relationships or related party transactions which would be required to be
disclosed in a registration statement under the Act by Item 404 of Regulation
S-K of the Commission, and each
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business relationship or related party transaction described in the Memorandum
is a fair and accurate description of the relationships and transactions so
described in all material respects.
(ff) Neither LNR nor any of its Affiliates nor any person acting on
its or their behalf (other than the Initial Purchasers) has engaged in any
directed selling efforts (as that term is defined in Regulation S) with respect
to the Notes; each of LNR and its Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers) have complied with the offering
restrictions requirement of Regulation S.
(gg) LNR is subject to the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act and is eligible to file a Registration
Statement on Form S-3. Each document filed, or to be filed prior to the closing
of transactions contemplated by this Agreement, by LNR pursuant to the Exchange
Act and incorporated, or to be incorporated, by reference in the Memorandum (or
any amendment or supplement thereto) at the time filed with the Commission
conformed, or will conform, in all material respects with the Exchange Act and
the applicable rules and regulations thereunder.
(hh) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(ii) LNR has purchased at least $79,915,000 aggregate principal
amount of its 10-1/2 % Senior Subordinated Notes due 2009.
Any certificate signed by any officer of LNR and delivered to the Initial
Purchasers or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by LNR to the Initial Purchasers as to the matters
covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, LNR agrees to issue and
sell to each Initial Purchaser, and each of the Initial Purchasers agrees
severally but not jointly to purchase from LNR, the aggregate principal amount
of Notes set forth opposite such Initial Purchaser's name on Schedule I hereto,
at a purchase price of 98.875% of their principal amount. One or more global
securities representing the Notes shall be registered by the Trustee in the name
of the nominee of The Depository Trust Company ("DTC"), Cede & Co., credited to
the accounts of such of its participants as the Initial Purchasers shall
request, upon notice to LNR at least 48 hours prior to the Closing Date (as
defined below), with any transfer taxes payable in connection with the transfer
of the Notes to the Initial Purchasers duly paid, and deposited with the Trustee
as custodian for DTC on the Closing Date, against payment by or on behalf of the
Initial Purchasers to the account of LNR of the aggregate purchase price
therefor by wire transfer in immediately available funds. Delivery of and
payment for the Notes shall be made at the offices of Xxxxxxx Xxxx & Xxxxxxxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City time,
on October 29, 2003, or at such other place, time or date not later than five
business days thereafter as the Initial Purchasers and LNR may agree upon. Such
time and date of delivery against payment are 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
-10-
to be closed.)
4. Offering by the Initial Purchasers.
(a) It is understood that the Initial Purchasers will offer and sell
the Notes in accordance with this Section as soon as they deem it advisable to
do so. The Notes are to be initially offered at the offering price set forth in
the Memorandum. The Initial Purchasers may from time to time thereafter change
the price and other selling terms.
(b) Each Initial Purchaser severally represents and agrees that
neither it nor any person acting on its behalf has engaged or will engage in any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Act).
(c) Each Initial Purchaser also severally represents and agrees that
it has not entered and will not enter into any contractual arrangement with any
distributor with respect to the distribution or delivery of the Notes, except
with its affiliates or with the prior written consent of LNR.
5. Covenants of LNR. LNR covenants and agrees with the Initial
Purchasers that:
(a) LNR will cooperate with the Initial Purchasers in arranging for
the qualification of the Notes for offering and sale under the securities or
"Blue Sky" laws of such jurisdictions as the Initial Purchasers may designate
and will continue such qualification in effect for as long as may be necessary
to complete the resale of the Notes by the Initial Purchasers; provided,
however, that in connection therewith LNR shall not be required to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction.
(b) If, at any time prior to the completion of the sale by the
Initial Purchasers of the Notes or the Private Exchange Notes, any event occurs
or information becomes known as a result of which the Memorandum as then amended
or supplemented would include an untrue statement of a material fact, or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the Memorandum
in order to comply with applicable law, LNR will promptly notify the Initial
Purchasers thereof and will prepare, at LNR's expense, an amendment or
supplement to the Memorandum that corrects such statement or omission or effects
such compliance.
(c) LNR will, without charge, provide to the Initial Purchasers and
to counsel for the Initial Purchasers as many copies of the Memorandum, any
documents incorporated by reference in either of them and any amendment or
supplement to either of them, as the Initial Purchasers may reasonably request.
(d) LNR shall apply the net proceeds from the sale of the Notes as
set forth under "Use of Proceeds" in the Memorandum.
(e) For so long as any Notes remain outstanding, LNR will furnish to
the Initial Purchasers copies of all reports and other communications (financial
or otherwise)
-11-
furnished by LNR to the Trustee or the holders of the Notes and, as soon as
available, copies of any reports or financial statements filed by LNR with the
Commission or furnished to any national securities exchange on which any class
of securities of LNR may be listed.
(f) Prior to the Closing Date, LNR will furnish to the Initial
Purchasers, as soon as they have been prepared by or are available to LNR, a
copy of any unaudited interim consolidated financial statements of LNR for any
period subsequent to the period covered by its most recent financial statements
appearing in the Memorandum.
(g) Neither LNR nor any of its Affiliates will sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any "security" (as
defined in the Act) that could be integrated with the sale of the Notes in a
manner that would require the registration under the Act of the Notes.
(h) LNR will not, and will not permit any of the Subsidiaries to,
engage in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Notes or in any manner involving a public offering within the meaning of
Section 4(2) of the Act.
(i) LNR will furnish to the Initial Purchasers a copy of each
proposed amendment or supplement to the Memorandum, and not use any such
proposed amendment or supplement to which the Initial Purchasers reasonably
object in writing; after the date hereof and prior to the completion of the
distribution of the Notes by the Initial Purchasers (as determined by the
Initial Purchasers), LNR will not file any document under the Exchange Act which
is incorporated by reference in the Memorandum, in each case unless the Initial
Purchasers previously have been advised of, and furnished with a copy within a
reasonable period of time prior to, the proposed filing. LNR will advise the
Initial Purchasers of the time when any amendment or supplement to the
Memorandum has been made or when any document filed under the Exchange Act which
is incorporated by reference in the Memorandum has been filed with the
Commission and will provide evidence satisfactory to the Initial Purchasers of
each such amendment, supplement or filing.
(j) LNR will not, nor will it permit any of its Affiliates (as
defined in Rule 501(b) under the Act) to, during the two-year period following
the Closing Date, resell any Notes that have been acquired by any of them.
(k) Except as contemplated by the Registration Rights Agreement,
neither LNR, nor any of its respective Affiliates, nor any authorized person
acting on its or their behalf will, directly or indirectly, make offers or sales
of any security, or solicit offers to buy any security, under circumstances that
would require the registration of the Notes or the Exchange Notes issuable upon
exchange thereof under the Act.
(l) Neither LNR nor any of its respective Affiliates, nor any person
acting on its or their behalf will engage in any form of general solicitation or
general advertising (as those terms are used in Rule 502(c) under the Act) in
connection with any offer or sale of the Notes in the United States.
-12-
(m) So long as any of the Notes are "restricted securities" within
the meaning of Rule 144(a)(3) under the Act, LNR will, during any period in
which it is not subject to and in compliance with Section 13 or 15(d) of the
Exchange Act, provide to each holder of such restricted securities and to each
prospective purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the Act. This
covenant is intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such restricted
securities.
(n) LNR will cooperate with the Initial Purchasers and use all
reasonable efforts to (i) permit the Notes to be eligible for clearance and
settlement through the facilities of DTC and such other clearance and settlement
systems that the Initial Purchasers may designate and (ii) arrange to have the
Notes be designated as PORTAL-eligible securities in accordance with the rules
and regulations of the NASD relating to the PORTAL Market.
(o) In connection with any Notes offered and sold in an offshore
transaction (as defined in Regulation S), LNR will not register or permit to be
registered any transfer of such Notes not made in accordance with the provisions
of Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Notes in the form of definitive
securities.
(p) LNR will not take, directly or indirectly, any action designed
to cause or result in, or that has constituted or could reasonably be expected
to constitute, the unlawful stabilization or manipulation of the price of any
securities of LNR.
(q) For as long as any Notes remain outstanding, LNR shall take such
steps as shall be necessary to ensure that neither LNR nor any subsidiary of LNR
shall become an "investment company" within the meaning of the Investment
Company Act, and the rules and regulations thereunder if LNR's becoming an
investment company would affect the ability of LNR to perform any of its
obligations with regard to the Notes or would affect any holder's rights with
regard to the Notes or restrict any holder's ability to transfer the Notes.
6. Expenses. LNR agrees to pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to: (i)
the printing, word processing or other production of documents with respect to
such transactions, including any costs of printing the Memorandum and any
amendments or supplements thereto, and any "Blue Sky" memoranda, (ii) all
arrangements relating to the delivery to the Initial Purchasers of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by LNR, (iv) the
preparation (including printing), issuance and delivery to the Initial
Purchasers of the Notes, (v) the qualification of the Notes under state
securities and "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel for the Initial Purchasers relating thereto, (vi) the
expenses of LNR in connection with any meetings with prospective investors in
the Notes, (vii) the fees and expenses of the Trustee, including fees and
expenses of its counsel, (viii) all expenses and listing fees incurred in
connection with the
-13-
application for quotation of the Notes on the PORTAL Market and (ix) any fees
charged by investment rating agencies for the rating of the Notes.
If the issuance and sale of the Notes provided for herein is not
consummated because any condition to the obligation of the Initial Purchasers
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Sections 11(a)(i)(y) or 11(a)(v) hereof or because of any
failure, refusal or inability on the part of LNR to perform all obligations and
satisfy all conditions on its part to be performed or satisfied hereunder (other
than solely by reason of a default by the Initial Purchasers of their
obligations hereunder after all conditions hereunder have been satisfied in
accordance herewith), LNR will promptly reimburse the Initial Purchasers upon
demand for reasonable out-of-pocket expenses (including fees, disbursements and
charges of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Initial Purchasers)
that shall have been incurred by the Initial Purchasers in connection with the
proposed purchase and sale of the Notes but LNR shall not in any event be liable
to any of the Initial Purchasers for damages on account of loss of anticipated
profits from the sale by them of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase the Notes on the Closing Date
are subject to the accuracy, as of the Closing Date, of the representations and
warranties of LNR contained herein, and to the performance by LNR of its
covenants and obligations hereunder and to the following additional conditions
(any of which may be waived in writing by the Initial Purchasers):
(a) On the Closing Date the Initial Purchasers shall have received
the opinions, dated as of the Closing Date and addressed to the Initial
Purchasers (and stating that it may be relied upon by counsel to the Initial
Purchasers), of Clifford Chance US LLP, counsel for LNR, and Bilzin Xxxxxxx
Xxxxx Price & Xxxxxxx LLP, special counsel to certain Designated Subsidiaries
and the Land Partnership, in form and substance satisfactory to counsel for the
Initial Purchasers, to the effect that:
(i) Each of LNR, the Designated Subsidiaries and the Land
Partnerships is duly organized, validly existing and, as to LNR and the
Designated Subsidiaries that are corporations, in good standing under the
laws of its jurisdiction of organization and, has all requisite corporate
or other power and authority to own, lease and operate its properties and
to conduct its business as described in the Memorandum. Each of LNR, the
Designated Subsidiaries and the Land Partnerships is duly qualified to do
business and in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification and where LNR has informed such counsel the failure to be so
qualified would, individually or in the aggregate, have a Material Adverse
Effect.
(ii) LNR has the authorized capital stock as set forth under
"Capitalization" in the Memorandum; all of the outstanding shares of
Common Stock and Class B Common Stock of LNR and the capital stock of each
Designated Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable and were not issued in violation of any
preemptive or similar rights; all of the outstanding shares of capital
stock of the Designated Subsidiaries are owned by LNR or another
Subsidiary, insofar as such counsel is aware, free and clear of all liens
(other than those created
-14-
pursuant to the Credit Agreement), encumbrances, equities and claims or
restrictions on transferability (other than those imposed by the Act and
the securities or "Blue Sky" laws of certain jurisdictions) or voting; LNR
indirectly owns a 50% interest in each Land Partnership; such interest in
each Land Partnership has been duly authorized and validly issued and is,
insofar as such counsel is aware, free and clear of all liens,
encumbrances, equities and claims.
(iii) Insofar as such counsel is aware, except as set forth in
the Memorandum or in a document incorporated by reference into the
Memorandum, (A) there are no outstanding options, warrants or other rights
to purchase from LNR or any Designated Subsidiary or either Land
Partnership shares of capital stock or ownership interests in LNR or any
Designated Subsidiary or ownership interests in either Land Partnership,
(B) other than LNR's Class B Common Stock, there are no outstanding
agreements or other obligations of LNR or any Designated Subsidiary to
issue, or other rights to cause LNR or any Designated Subsidiary or either
Land Partnership to convert, any obligation into, or exchange any
securities for, shares of capital stock or ownership interests in LNR or
any Designated Subsidiary or ownership interests in either Land
Partnership and (C) no holder of securities of LNR or any Designated
Subsidiary (other than the Notes) is entitled to have such securities
registered under a registration statement filed by LNR.
(iv) LNR has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Notes, the Exchange
Notes, the Private Exchange Notes, the Indenture and the Registration
Rights Agreement.
(v) The Indenture is in sufficient form for qualification
under the Trust Indenture Act; the Indenture has been duly and validly
authorized, executed and delivered by LNR, and (assuming the due
authorization, execution and delivery of the Indenture by the Trustee)
constitutes the valid and legally binding agreement of LNR, enforceable
against LNR in accordance with its terms, except to the extent that the
enforcement thereof may be affected by (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 Notes are in the form contemplated by the Indenture.
The Notes have each been duly and validly authorized, executed and
delivered by LNR and, when paid for by the Initial Purchasers 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 Notes by the Trustee in accordance
with the Indenture), will constitute the valid and legally binding
obligations of LNR, entitled to the benefits of the Indenture, and
enforceable against LNR in accordance with their terms, except to the
extent that the enforcement thereof may be affected by (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
-15-
therefor may be brought (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(vii) The Exchange Notes and the Private Exchange Notes have
been duly and validly authorized by LNR and when executed and delivered by
LNR, the exchange transactions described in, or as otherwise contemplated
by the Registration Rights Agreement (assuming the due authorization,
execution and delivery of the Indenture by the Trustee and due
authentication and delivery of the Exchange Notes and the Private Exchange
Notes by the Trustee in accordance with the Indenture), will constitute
the valid and legally binding obligations of LNR, entitled to the benefits
of the Indenture, and enforceable against LNR in accordance with their
terms, except to the extent that the enforcement thereof may be affected
by (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).
(viii) The Registration Rights Agreement has been duly and
validly authorized, executed and delivered by LNR, and (assuming due
authorization, execution and delivery thereof by the Initial Purchasers)
constitutes the valid and legally binding agreement of LNR enforceable
against LNR in accordance with its terms, except to the extent that (A)
the enforcement thereof may be affected by (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) and (B) any
rights to indemnity or contribution thereunder may be limited by federal
or state securities laws or public policy considerations.
(ix) LNR has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; this Agreement and the
consummation by LNR of the transactions contemplated hereby have been duly
and validly authorized by LNR. This Agreement has been duly executed and
delivered by LNR.
(x) The Indenture, the Notes and the Registration Rights
Agreement conform as to legal matters in all material respects to the
descriptions thereof contained or incorporated by reference in the
Memorandum.
(xi) Insofar as such counsel is aware there are (i) no legal
or governmental proceedings pending or threatened to which LNR or any
Designated Subsidiary or either Land Partnership is a party or to which
the property or assets of LNR or any Designated Subsidiary or either Land
Partnership is subject which would be required under the Act to be
described in a registration statement under the Act or in a prospectus
meeting the requirements of Section 10 of the Act, and are not described
in the Memorandum, or which seek to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Notes
to be sold hereunder or the
-16-
consummation of the other transactions described in the Memorandum and
(ii) no contracts, agreements or other documents to which LNR or any
Designated Subsidiary or either Land Partnership is a party which would be
required under the Act to be described in a registration statement or
prospectus and are not described in the Memorandum. The descriptions
contained or incorporated by reference in the Memorandum of the Credit
Agreement, the partnership agreements of each of the Land Partnerships,
the separation and distribution agreement relating to the spin-off of LNR
and the By-Laws of LNR are accurate in all material respects and fairly
summarize the provisions of such agreements and documents which they
purport to summarize.
(xii) Insofar as such counsel is aware, neither LNR nor any
Designated Subsidiary is in violation of its certificate of incorporation
or bylaws or other comparable organizational documents and neither Land
Partnership is in violation of the partnership agreement under which it
was formed.
(xiii) The execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement, and the
consummation of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Notes to the
Initial Purchasers) and the consummation of the Debt Tender Offer will not
conflict with or constitute or result in a breach or a default under (or
an event which with notice or passage of time or both would constitute a
default under) or violation of or cause an acceleration of any obligation
under, or result in the imposition or creation of (or the obligation to
create or impose) a lien on any property or assets of LNR or any
Subsidiary or Investment Affiliate with respect to (i) the terms or
provisions of any of the terms or provisions of any material contract,
agreement or instrument of which such counsel is aware to which LNR or any
Designated Subsidiary or either Land Partnership is a party or by which
LNR or any Designated Subsidiary or either Land Partnership may be bound,
(ii) the certificate of incorporation or bylaws or other comparable
organizational documents of LNR or any Designated Subsidiary or the
partnership agreement of either Land Partnership, or (iii) (assuming
compliance with all applicable state securities or "Blue Sky" laws and
assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule
or regulation generally applicable to transactions of the type
contemplated by the Memorandum or known to such counsel to be applicable
to LNR or any Designated Subsidiary or either Land Partnership.
(xiv) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by LNR of the
Notes to the Initial Purchasers, or the other transactions contemplated in
this Agreement or the consummation of the Debt Tender Offer, except (i) as
may be required under applicable securities laws in connection with the
registration under the Act of the Notes, and the Private Exchange Notes,
if applicable, pursuant to the Registration Rights Agreement and (ii) as
may be required under state securities or blue sky laws (as to which such
counsel need express no opinion).
(xv) Neither LNR nor any of its subsidiaries is, or
immediately after the sale of the Notes to be sold hereunder and the
application of the proceeds from such sale
-17-
(as described in the Memorandum under the caption "Use of Proceeds") will
be, an "investment company" as such term is defined in the Investment
Company Act, and the rules and regulations thereunder.
(xvi) No registration under the Act of the Notes is required
in connection with the sale of the Notes to the Initial Purchasers as
contemplated by this Agreement and the Memorandum or in connection with
the initial resale of the Notes by the Initial Purchasers in accordance
with Section 8 of this Agreement, and prior to the commencement of the
Exchange Offer (as defined in the Registration Rights Agreement) or the
effectiveness of the Shelf Registration Statement (as defined in the
Registration Rights Agreement), the Indenture is not required to be
qualified under the Trust Indenture Act, in each case assuming (i) that
the purchasers who buy such Notes in the initial resale thereof are
Qualified Institutional Buyers or Accredited Investors, as those terms are
defined in the rules under the Act, (ii) the accuracy of the Initial
Purchasers' representations in Section 8 and those of LNR contained in
this Agreement regarding the absence of a general solicitation in
connection with the sale of such Notes to the Initial Purchasers and the
initial resale thereof and (iii) the due performance by the Initial
Purchasers of the agreements set forth in Section 8 hereof and the
offering and transfer procedures set forth in the Memorandum.
(xvii) Neither the sale, issuance, execution or delivery of
the Notes nor any other transaction contemplated by this Agreement will
violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
(xviii) The statements under the captions "Description of the
Notes," "Exchange Offer; Registration Rights" and "Notice to Investors;
Transfer Restrictions" in the Memorandum or incorporated therein by
reference, insofar as such statements constitute a summary of the
documents referred to therein or matters of law, provide a fair and
accurate summary in all material respects of the information called for
with respect to such documents and matters under current law.
At the time the foregoing opinion is delivered, Clifford Chance US
LLP shall additionally state that it has participated in conferences with
officers and other representatives of LNR, representatives of the independent
public accountants for LNR, representatives of the Initial Purchasers and
counsel for the Initial Purchasers, at which conferences the contents of the
Memorandum and related matters were discussed, and, although it has not
independently verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Memorandum (except to the extent specified in subsection 7(a)(xviii)), no facts
have come to its attention which lead it to believe that the Memorandum, on the
date thereof or at the Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading (it being
understood that such firm need express no belief with respect to the financial
statements and related notes thereto and the other financial or statistical data
included in the Memorandum).
-18-
In rendering its opinion, Clifford Chance US LLP may state that they
express no opinion as to the laws of any jurisdiction other than the federal
laws of the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware.
(b) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Initial
Purchasers, with respect to certain legal matters relating to this Agreement,
and such other related matters as the Initial Purchasers may reasonably require.
In rendering such opinion, Xxxxxxx Xxxx & Xxxxxxxxx LLP shall have received and
may rely upon such certificates and other documents and information as they may
reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from Deloitte &
Touche LLP, independent public accountants for LNR, comfort letters, dated the
date hereof and the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchasers and counsel for the Initial Purchasers.
(d) The representations and warranties of LNR contained in this
Agreement shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of the Closing Date, except those
representations and warranties, or portions thereof, which by their terms are
subject to a materiality, Material Adverse Effect or similar standard shall be
true and correct in all respects; LNR shall have performed in all material
respects all covenants and agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date; and,
except as set forth in the Memorandum (exclusive of any amendment or supplement
thereto after the date hereof) subsequent to the date of the most recent
financial statements in such Memorandum, there shall have been no event or
development that, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect.
(e) Neither the issuance and sale of the Notes pursuant to this
Agreement nor the Debt Tender Offer shall have been enjoined (temporarily or
permanently) and no restraining order or other injunctive order shall have been
issued or any action, suit or proceeding shall have been commenced with respect
to this Agreement or the Debt Tender Offer before any court or governmental
authority.
(f) The Initial Purchasers shall have received a certificate, dated
the Closing Date, signed by LNR's Chief Executive Officer and its Chief
Financial Officer to the effect that:
(i) The representations and warranties of LNR in this
Agreement are true and correct in all material respects as if made on and
as of the Closing Date, except those representations and warranties, or
portions thereof, which by their terms are subject to a materiality,
Material Adverse Effect or similar standard shall be true and correct in
all respects, and LNR has performed in all material respects all covenants
and agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statements in, or incorporated by
reference in, the Memorandum
-19-
(exclusive of any amendment or supplement thereto after the date hereof),
no event or events have occurred, no information has become known nor does
any condition exist that, individually or in the aggregate, would have a
Material Adverse Effect;
(iii) Such officer has carefully examined the Memorandum; in
such officer's opinion and to the best of such officer's knowledge,
neither the Memorandum nor any amendment or supplement thereto includes
any untrue statement of a material fact or omits to state any 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;
(iv) Since the date hereof or since the date of which
information is given in the Memorandum, except as described in or
contemplated by the Memorandum, neither LNR nor any of the Subsidiaries or
Investment Affiliates has incurred any liabilities or obligations direct
or contingent (other than in the ordinary course of business) that are
material to LNR and its Subsidiaries taken as a whole or entered into any
transactions not in the ordinary course of business that are material to
the business, condition (financial or other) or results of operations or
prospects of LNR and the Subsidiaries, taken as a whole, and there has not
been any change in the capital stock or long-term indebtedness of LNR or
any of the Subsidiaries or Investment Affiliates that is material to the
business, condition (financial or other) or results of operations or
prospects of LNR and the Subsidiaries at and as of the Closing Date taken
as a whole; and
(v) Neither the sale of the Notes hereunder nor the Debt
Tender Offer has been enjoined (temporarily or permanently).
(g) On the Closing Date, the Initial Purchasers shall have received
the Registration Rights Agreement executed by LNR and such agreement shall be in
full force and effect at all times from and after the Closing Date.
(h) The Indenture shall have been duly executed and delivered by LNR
and the Trustee, and the Notes shall have been duly executed by LNR, and the
Notes shall have been duly authenticated by the Trustee.
(i) On or before the Closing Date, the Initial Purchasers and
counsel for the Initial Purchasers shall have received such further documents,
certificates and schedules or instruments relating to the business, corporate,
legal and financial affairs of LNR as they shall have heretofore reasonably
requested from LNR.
(j) On or before the Closing Date, the Debt Tender Offer shall not
have been withdrawn or terminated by LNR.
All such documents, opinions, certificates and schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. LNR shall furnish to
the Initial Purchasers such conformed copies of such documents, opinions,
-20-
certificates and schedules or instruments in such quantities as the Initial
Purchasers shall reasonably request.
8. Offering of Notes, Restrictions on Transfer. 1) Each of the
Initial Purchasers, severally and not jointly, agrees with LNR that (i) it has
not and will not solicit offers for, or offer or sell, the Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act; and (ii) it has and will solicit offers
for the Notes only from, and will offer and sell the Notes only to (A) in the
case of offers inside the United States, persons whom the Initial Purchasers
reasonably believe to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to the Initial Purchasers or the Initial
Purchasers reasonably believe, that each such account is a QIB, to whom notice
has been given that such sale or delivery is being made in reliance on Rule
144A, and, in each case, in transactions under Rule 144A and (B) in the case of
offers outside the United States, to persons other than U.S. persons ("non-U.S.
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for non-U.S. beneficial
owners (other than an estate or trust)); provided, however, that, in the case of
this clause (B), in purchasing such Notes such persons are deemed to have
represented and agreed as provided under the caption "Notice to Investors;
Transfer Restrictions" contained in the Memorandum.
(b) Each of the Initial Purchasers represents and warrants (as to
itself only) with respect to offers and sales outside the United States of Notes
that (i) it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers such Notes or has
in its possession or distributes any Memorandum or any other material, in all
cases at its own expense; (ii) such Notes have not been and will not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Act or pursuant to an
exemption from registration requirements of the Act; (iii) it has offered such
Notes and will offer and sell such Notes (A) as part of its distribution at any
time and (B) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 of Regulation S
and, accordingly, neither it nor any persons acting on its behalf have engaged
or will engage in any "directed selling efforts" (within the meaning of
Regulation S) with respect to the Notes, and any such persons have complied and
will comply with the offering restrictions requirement of Regulation S; and (iv)
it agrees that, at or prior to confirmation of sales of such Notes, it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases any of such Notes from it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered and sold within the United States or to,
or for the account or benefit of, U.S. persons (i) as part of the
distribution of the Securities at any time or (ii) otherwise until 40
days after the later of the commencement of the offering and the
closing date of the offering, except in either case in accordance with
Regulation S (or Rule 144A if
-21-
available) under the Securities Act. Terms used above have the meaning
given to them in Regulation S."
Terms used in this Section 8 and not defined in this Agreement have
the meanings given to them in Regulation S.
(c) Each of the Initial Purchasers represents and warrants (as to
itself only) that (i) it has not offered or sold and, prior to or during the
period of six months from the issuance of the Notes, will not offer or sell the
Notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances that do not constitute an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (ii) it has complied with and will comply with all applicable provisions
of the Financial Services Act 1986 of Great Britain with respect to any action
taken in relation to the Notes in, from or otherwise involving the United
Kingdom and (iii) it has only issued or passed on and will only issue or pass on
in the United Kingdom any document in connection with the issue and sale of the
Notes to a person who is of the kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom the document may otherwise be lawfully issued or
passed.
9. Indemnification and Contribution. 2) LNR agrees to indemnify and
hold harmless the Initial Purchasers and the affiliates, directors, officers,
agents, representatives and employees of the Initial Purchasers, and each other
person, if any, who controls the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Initial
Purchasers or any such affiliate, director, officer, agent, representative,
employee or controlling person may become subject under the Act, the Exchange
Act or otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Memorandum or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by LNR or based upon written
information furnished by or on behalf of LNR filed in any jurisdiction in
order to qualify the Notes under the securities or "Blue Sky" laws thereof
or filed with any securities association or securities exchange (each, an
"Application"); or
(ii) the omission or alleged omission to state, in the
Memorandum or any amendment or supplement thereto, or any Application, a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and will reimburse, promptly upon request, the Initial Purchasers and each such
affiliate, director, officer, agent, representative and employee and each such
controlling person for any legal or other expenses reasonably incurred by the
Initial Purchasers, such affiliate, director, officer, agent, representative or
employee or such controlling person in connection with investigating, defending
against or appearing as a third-party witness in connection with any
-22-
such loss, claim, damage, liability or action; provided, however, that LNR 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 any untrue statement or alleged
untrue statement or omission or alleged omission made in the Memorandum or any
amendment or supplement thereto, or any Application, in reliance upon and in
conformity with written information concerning the Initial Purchasers or their
resale of the Notes furnished to LNR by the Initial Purchasers specifically for
use therein. This indemnity agreement will be in addition to any liability that
LNR may otherwise have to the indemnified parties. LNR shall not be liable under
this subsection (a) for any settlement of any claim or action effected without
its consent, which consent shall not be unreasonably withheld or delayed.
(b) The Initial Purchasers, severally and not jointly, agree to
indemnify and hold harmless LNR, its affiliates, directors, officers, agents,
representatives and employees and each other person, if any, who controls LNR
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which LNR or any such
affiliate, director, officer, agent, representative, employee or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions 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 Memorandum or any amendments or
supplement thereto, or any Application or (ii) the omission or the alleged
omission to state therein a material fact required to be stated in the
Memorandum or any amendment or supplement thereto, or any Application, or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning the Initial Purchasers furnished
to LNR by the Initial Purchasers specifically for use therein; and, subject to
the limitation set forth immediately preceding this clause, will reimburse,
promptly upon request, any legal or other expenses reasonably incurred by LNR or
any such affiliate, director, officer, agent, representative, employee or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Initial Purchasers may otherwise have to
the indemnified parties. No Initial Purchaser shall be liable under this Section
9 for any settlement of any claim or action effected without its consent, which
consent shall not be unreasonably withheld or delayed. LNR shall not, without
the prior written consent of the Initial Purchasers, effect any settlement or
compromise of any pending or threatened proceeding in respect of which the
Initial Purchasers is or could have been a party, or indemnity could have been
sought hereunder by the Initial Purchasers, unless such settlement (A) includes
an unconditional written release of the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of the Initial Purchasers.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under subsection (a) or (b) above unless
and to the extent
-23-
such failure results in the forfeiture or waiver by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in subsections (a) and (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Deutsche Bank Securities Inc. in the
case subsection (a) of this Section 9 or LNR in the case of subsection (b) of
this Section 9, representing the indemnified parties under such subsection (a)
or subsection (b), as the case may be, who are parties to such action or
actions) or (ii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld).
(d) In circumstances in which the indemnity agreement provided for
in the preceding subsections of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative
-24-
benefits but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof). The
relative benefits received by LNR on the one hand and the Initial Purchasers on
the other shall be deemed to be in the same proportion as the total proceeds
from the offering (before deducting expenses) received by LNR bear to the total
discounts and commissions received by the Initial Purchasers. The relative fault
of the parties 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 LNR
on the one hand, or the Initial Purchasers on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission, and any other
equitable considerations appropriate in the circumstances. LNR and the Initial
Purchasers agree that it would not be just and equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this subsection (d).
Notwithstanding any other provision of this subsection (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts, commissions and other compensation received by such Initial
Purchaser under this Agreement, less the aggregate amount of any damages that
such Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and 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. For purposes of this subsection (d), each affiliate,
director, officer, agent, representative and employee of the Initial Purchasers
and each person, if any, who controls any Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Initial Purchaser, and each affiliate, director,
officer, agent, representative and employee of LNR and each person, if any, who
controls LNR within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as LNR.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of LNR, its officers and
the Initial Purchasers set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of LNR, any of
its officers or directors, the Initial Purchasers or any controlling person
referred to in Section 9 hereof and (ii) delivery of and payment for the Notes.
The respective agreements, covenants, indemnities and other statements set forth
in Sections 6, 9 and 15 hereof shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement.
11. Termination.
(a) This Agreement may be terminated in the sole discretion of the
Initial Purchasers by notice to LNR given prior to the Closing Date in the event
that LNR shall have failed, refused or been unable to perform, in all material
respects, all obligations and satisfy all
-25-
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if after the date of this Agreement and at or prior to the Closing
Date:
(i) either (x) LNR or any Subsidiary or Investment Affiliate
shall have sustained any loss or interference with respect to its
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any strike, labor
dispute, slow down or work stoppage or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the
Initial Purchasers, has had or has a Material Adverse Effect, or (y) there
shall have been, in the sole judgment of the Initial Purchasers, any event
or development that, individually or in the aggregate, has or could be
reasonably likely to have a Material Adverse Effect (including without
limitation a change in control of LNR or any Subsidiary or Investment
Affiliate), except in each case as described in or contemplated by the
Memorandum (exclusive of any amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market shall
have been suspended or maximum or minimum prices shall have been
established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities, or (B) any declaration of war, an outbreak or escalation of
any other insurrection or armed conflict involving the United States or
any other national or international calamity, crisis or emergency or (C)
any change in the political or economic conditions or any material change
in the financial markets of the United States that, in the case of (A),
(B) or (C) above and in the sole judgment of the Initial Purchasers, makes
it impracticable or inadvisable to proceed with the offering or the
delivery of the Notes as contemplated by the Memorandum or to enforce
contracts for the sale of the Notes;
(v) any securities of LNR shall have been downgraded or placed
on any "watch list" for possible downgrading by any nationally recognized
statistical rating organization;
(vi) the enactment, publication, decree or other promulgation
of any statute, regulation, rule or order of any court or other
governmental authority which in the Initial Purchasers' reasonable opinion
materially and adversely affects or may materially and adversely affect
the business or operations of LNR; or
(vii) the taking of any action by any governmental body or
agency in respect of its monetary or fiscal affairs which in the Initial
Purchasers' reasonable opinion has a material adverse effect on the
securities markets in the United States and would make it impracticable or
inadvisable to market the Notes or to enforce contracts for the sale of
the Notes.
-26-
Termination of this Agreement pursuant to this Section 11(a) shall
be without liability of any party to any other party except as provided in
Section 9 hereof.
(b) If, on the Closing Date, any Initial Purchaser shall fail to
purchase and pay for the portion of the Notes that such Initial Purchaser has
agreed to purchase and pay for on such date (otherwise than by reason of any
default on the part LNR), the non-defaulting Initial Purchasers shall use their
reasonable efforts to procure within 36 hours thereafter the defaulting Initial
Purchaser, or any others, to purchase from LNR in such respective amounts as may
be agreed upon and upon the terms set forth herein, the Notes that the
defaulting Initial Purchaser failed to purchase. If during such 36 hours the
non-defaulting Initial Purchasers shall not have procured the defaulting Initial
Purchaser, or any others, to purchase the Notes agreed to be purchased by the
defaulting Initial Purchaser, then LNR or the non-defaulting Initial Purchasers
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
Initial Purchasers or of LNR except to the extent provided for in Section 9
hereof. In the event of a default by an Initial Purchaser, as set forth in this
Section 11(b), the Closing Date may be postponed for such period, not exceeding
seven days, as the non-defaulting Initial Purchasers may determine in order that
the required changes in the Memorandum or in any other documents may be
effected. Any action taken under this Section 11(b) shall not relieve any
defaulting Initial Purchaser from liability in respect of any default of such
Initial Purchaser under this Agreement.
12. Information Supplied by the Initial Purchasers. The statements
set forth in the first sentence of the third paragraph and the ninth paragraph
of the section entitled "Plan of Distribution" in the Memorandum (to the extent
such statements related to the Initial Purchasers) constitute the only
information furnished by the Initial Purchasers to LNR for the purposes of
Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
if sent to the Initial Purchasers, shall be mailed or delivered or telecopied
and confirmed in writing to:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 1005
Attention: Leveraged Finance
and
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
and
Banc of America Securities LLC
NC1-007-11-07
000 X. Xxxxx Xxxxxx
-27-
Charlotte, NC 28255
Attention: Corporate Finance Department
and
Fleet Securities, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: X. Xxxxx Xxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. X'Xxxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
and if sent to LNR, shall be mailed, delivered or telecopied and
confirmed in writing to LNR at:
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx, Chief Financial Officer
with a copy to:
Clifford Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, LNR and their respective successors,
assigns and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the Initial Purchasers LNR and their respective successors, assigns
and legal representatives and for the benefit of no other person except that (i)
the indemnities of LNR contained in Section 9 of this Agreement shall also be
for the benefit of the affiliates, directors, officers, agents, representatives
and employees of the Initial Purchasers and any person or persons who control
the Initial Purchasers within the meaning of Section 15 of the Act or Section 20
of the Exchange Act and (ii) the indemnities of the Initial Purchasers contained
in Section 9 of this Agreement shall also be for the benefit of the affiliates,
directors, officers, agents, representatives and employees of LNR and any person
or persons who control LNR within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of any of the Notes from the
Initial Purchasers will be deemed a successor because of such purchase.
-28-
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW THAT WOULD APPLY
THE LAW OF ANY OTHER JURISDICTION.
[Signature page follows]
-29-
16. Counterparts. 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. If the foregoing
correctly sets forth our understanding, please indicate your acceptance thereof
in the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement among LNR and the Initial Purchasers.
Very truly yours,
LNR PROPERTY CORPORATION
By:
---------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
DEUTSCHE BANK SECURITIES INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By:
------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
------------------------------------
Name:
Title:
FLEET SECURITIES, INC.
By:
------------------------------------
Name:
Title:
[Signature Page to Purchase Agreement]
SCHEDULE I
Schedule of Initial Purchasers
Principal Amount of
Initial Purchaser Notes to be Purchased
----------------- ---------------------
Deutsche Bank Securities Inc. $150,000,000
Citigroup Global Markets Inc. $ 75,000,000
Banc of America Securities LLC $ 45,000,000
Fleet Securities, Inc. $ 30,000,000
------------
Total: $300,000,000
============
Schedule I
EXHIBIT A
Form of Registration Rights Agreement
Exhibit A
