EXCHANGE AGENT AGREEMENT
Exhibit 99.3
X.X. Xxxxxx Trust Company, National Association
Ladies and Gentlemen:
Lennar Corporation, a Delaware corporation (the “Company”), proposes to make an offer (the “Exchange Offer”) to exchange up to $300,000,000 aggregate principal amount of its Series B 5.125% Senior Notes due 2010 (the “Exchange Notes”), for a like principal amount of its outstanding Series A 5.125% Senior Notes due 2010 (the “Private Notes”). The terms and conditions of the Exchange Offer are set forth in a prospectus (the “Prospectus”) included in the Company’s Registration Statement on Form S-4 (Registration No. 333-[ ]) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “SEC”), that the Company proposes to distribute to all record holders of the Private Notes. The Private Notes and the Exchange Notes are collectively referred to as the “Notes.”
The Company hereby appoints X.X. Xxxxxx Trust Company, National Association to act as exchange agent (the “Exchange Agent”) in connection with the Exchange Offer. References below to “you” refer to X.X. Xxxxxx Trust Company, National Association.
The Exchange Offer is expected to be commenced by the Company on or about [ ]. The Letter of Transmittal accompanying the Prospectus is to be used by the holders of the Private Notes to accept the Exchange Offer and contains instructions with respect to the delivery of certificates for Private Notes that are tendered.
The Exchange Offer will expire at 5:00 P.M., New York City time, on [ ], or on any later date or time to which the Company may extend the Exchange Offer (the “Expiration Date”). Subject to the terms and conditions set forth in the Prospectus, the Company expressly reserves the right to extend the Exchange Offer from time to time and may extend the Exchange Offer by giving oral (confirmed in writing) or written notice to you before 9:00 A.M., New York City time, on the next business day after the previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend or terminate the Exchange Offer, and not to accept for exchange any Private Notes that had not already been accepted for exchange. The Company will give oral (confirmed in writing) or written notice of any amendment, termination or non-acceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance with the following instructions:
| 1. You will perform such duties and only such duties as are specifically set forth in the section of the Prospectus captioned “The Exchange Offer,” in the Letter of Transmittal accompanying the Prospectus or as specifically set forth herein; provided, however, that in no way will your general duty to act in good faith and without gross negligence or willful misconduct be limited by the foregoing. | |
| 2. You will establish an account with respect to the Private Notes at The Depository Trust Company (the “Book-Entry Transfer Facility”) for purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in the Book-Entry Transfer Facility’s systems may make book-entry delivery of Private Notes by causing the Book-Entry Transfer Facility to transfer the Private Notes into your account in accordance with the Book-Entry Transfer Facility’s procedures for such transfer. | |
| 3. You are to examine each of the Letters of Transmittal and confirmations of book-entry transfers of Private Notes into your account at the Book-Entry Transfer Facility and any other documents delivered or mailed to you by or for holders of the Private Notes, to ascertain whether: (i) the Letters of Transmittal and any such other documents are duly executed and properly completed in accordance with instructions set forth therein and that such book-entry confirmations are in due and proper form and contain the information required to be set forth therein, and (ii) the Private Notes have otherwise been |
| properly tendered. In each case where a Letter of Transmittal or any other document has been improperly completed or executed, or where book-entry confirmations are not in due and proper form or omit certain information, or there is some other irregularity in connection with the acceptance of the Exchange Offer, you will endeavor to inform the presenters of the need for fulfillment of all requirements and to take any other action that may be necessary or advisable to cause the irregularity to be corrected. | |
| 4. With the approval of the Chairman, the President and Chief Executive Officer, any Vice President or the General Counsel of the Company (such approval, if given orally, to be confirmed in writing) or any other person designated by such an officer in writing, you are authorized to waive any irregularities in connection with any tenders of Private Notes in response to the Exchange Offer. | |
| 5. Tenders of Private Notes may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned “The Exchange Offer — Procedures for Tendering Notes,” and Private Notes will be considered properly tendered to you only when they are tendered in accordance with those procedures. Notwithstanding the provisions of this paragraph 5, Private Notes which the Chairman, the President and Chief Executive Officer, any Vice President or the General Counsel or any other officer of the Company designated by any such person shall approve as having been properly tendered shall be considered to be properly tendered (such approval, if given orally, to be confirmed in writing). | |
| 6. You shall advise the Company with respect to any Private Notes received subsequent to the Expiration Date and accept its instructions with respect to disposition of such Private Notes. | |
| 7. You shall accept tenders: |
| (a) in cases where the Private Notes are registered in two or more names only if signed by all named holders; | |
| (b) in cases where the signing person (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when proper evidence of his or her authority so to act is submitted; and | |
| (c) from persons other than the registered holder of Private Notes only if customary transfer requirements, including those regarding any applicable transfer taxes, are fulfilled. |
| You shall accept partial tenders of Private Notes when so indicated and as permitted in the Letter of Transmittal and return any untendered Private Notes to the holder (or such other person as may be designated in the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer. | |
| 8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company will notify you (such notice if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Private Notes properly tendered and you, on behalf of the Company, will exchange such Private Notes for Exchange Notes and will cause such Private Notes to be canceled. Delivery of Exchange Notes will be made on behalf of the Company by you, at the rate of $1,000 principal amount of Exchange Notes for each $1,000 principal amount of the Private Notes tendered, promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of the Private Notes by the Company; provided, however, that in all cases, Private Notes tendered in response to the Exchange Offer will be exchanged only after timely receipt by you of confirmation of book-entry transfer of the tendered Private Notes into your account at the Book-Entry Transfer Facility, a properly completed and, except as described in the section of the prospectus captioned “The Exchange Offer — Procedures for Tendering Notes,” duly executed Letter of Transmittal (or facsimile of one) with any required signature guarantees and any other required documents. Unless otherwise instructed by the Company, you will issue Exchange Notes only in denominations of $1,000 or any integral multiple of that amount. | |
| 9. Tenders in response to the Exchange Offer are irrevocable, except that, subject to the terms and upon the conditions set forth in the Prospectus and the Letter of Transmittal, Private Notes tendered in |
| response to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date in accordance with the terms of the Exchange Offer. | |
| 10. The Company shall not be required to issue Exchange Notes in exchange for all or any of the Private Notes that are tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by the Company not to issue Exchange Notes in exchange for all or any of the Private Notes that are tendered shall be given (and confirmed in writing) by the Company to you. | |
| 11. If, pursuant to the Exchange Offer, the Company does not accept for exchange all or part of the Private Notes that are tendered because of invalid tenders, the occurrence of certain other events set forth in the Prospectus or otherwise, you shall as soon as practicable after the expiration or termination of the Exchange Offer, return those unaccepted Private Notes by appropriate book-entry transfer, together with any related required documents and the Letters of Transmittal relating to them that are in your possession, to the persons who surrendered them. | |
| 12. You are not authorized to pay or offer to pay any concessions, commissions or other solicitation fees to any broker, dealer, commercial bank, trust company or other nominee or to engage or use any person to solicit tenders. | |
| 13. As Exchange Agent hereunder, you: |
| (a) shall have no duties or obligations other than those specifically set forth in the Prospectus, the Letter of Transmittal or herein or as may be subsequently agreed to in writing by you and the Company; | |
| (b) will be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any of the Private Notes submitted to you in response to the Exchange Offer, and will not be required to and will make no representation as to the validity, value or genuineness of the Exchange Offer; | |
| (c) will not be obligated to take any legal action hereunder which might in your reasonable judgment involve any expense or liability, unless you have been furnished with reasonable indemnity; | |
| (d) may rely on and will be protected in acting in reliance upon any certificate, instrument, opinion, notice, letter, telegram or other document or security delivered to you and reasonably believed by you to be genuine and to have been signed by the proper party or parties; | |
| (e) may act upon any tender, statement, request, comment, agreement or other instrument whatsoever which you shall in good faith believe to be genuine or to have been signed or represented by a proper person or persons, not only as to its due execution and validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein; | |
| (f) may rely on and shall be protected in acting upon written or oral instructions from any officer of the Company; | |
| (g) may consult with your counsel with respect to any questions relating to your duties and responsibilities, and the written opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by you hereunder in good faith and in accordance with the written opinion of such counsel; and | |
| (h) will not advise any person tendering Private Notes in response to the Exchange Offer as to whether to tender or refrain from tendering all or any portion of Private Notes or as to the market value, or the decline or appreciation in market value, of the Private Notes that may or may not occur as a result of the Exchange Offer, or as to the market value of the Exchange Notes; |
| provided, however, that in no way will your general duty to act in good faith and without gross negligence or willful misconduct be limited by the foregoing. |
| 14. You will take such action as may from time to time be requested by the Company or its counsel (and such other action as you may reasonably deem appropriate) to furnish copies of the Prospectus, |
| Letter of Transmittal and the Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms as may be approved from time to time by the Company, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the Exchange Offer, provided that such information shall relate only to the procedures for accepting (or withdrawing from) the Exchange Offer. The Company will furnish you with copies of such documents at your request. | |
| 15. You will advise by facsimile transmission or telephone, and promptly thereafter confirm in writing to Xxxxxxx Xxxxxxx, Esq., Deputy General Counsel of the Company (telephone number (000) 000-0000, facsimile number (000) 000-0000), and such other person or persons as the Company may request, daily up to and including the Expiration Date, as to the aggregate principal amount of Private Notes which have been duly tendered in response to the Exchange Offer and the items received by you in response to the Exchange Offer and in accordance with this Agreement, separately reporting and giving cumulative totals as to items properly received and items improperly received. In addition, you will also inform, and cooperate in making available to, the Company or any such other person or persons upon oral request made from time to time prior to the Expiration Date. such other information as it or he or she reasonably requests. Such cooperation shall include, without limitation, the granting by you to the Company and such persons as the Company may request of access to the persons on your staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date the Company shall have received information in sufficient detail to enable it to decide whether to extend the Exchange Offer. You shall prepare a final list of all persons whose tenders were accepted, the aggregate principal amount of Private Notes tendered, the aggregate principal amount of Private Notes accepted and the identity of any Participating Broker-Dealers and the aggregate principal amount of Exchange Notes delivered to each, and deliver that list to the Company. | |
| 16. Letters of Transmittal, book-entry confirmations and Notices of Guaranteed Delivery received by you shall be preserved by you for a period of time at least equal to the period of time you preserve other records pertaining to the transfer of securities, or one year, whichever is longer, and thereafter shall be delivered by you to the Company. You shall dispose of unused Letter of Transmittal forms and other surplus materials as instructed by the Company. | |
| 17. You hereby expressly waive any lien, encumbrance or right of set-off whatsoever that you may have with respect to funds deposited with you for the payment of transfer taxes by reasons of amounts, if any, borrowed by the Company, or any of its subsidiaries or affiliates pursuant to any loan or credit agreement with you or for compensation owed to you hereunder. | |
| 18. For services rendered as Exchange Agent hereunder, you shall be entitled to compensation as set forth on Schedule I attached hereto. | |
| 19. You hereby acknowledge receipt of the Prospectus and the Letter of Transmittal and further acknowledge that you have examined each of them. Any inconsistency between this Agreement, on the one hand, and the Prospectus and the Letter of Transmittal (as they may be amended from time to time), on the other hand, shall be resolved in favor of the latter two documents, except with respect to the duties, liabilities and indemnification of you as Exchange Agent, which shall be controlled by this Agreement. | |
| 20. The Company covenants and agrees to indemnify and hold you harmless in your capacity as Exchange Agent hereunder against any loss, liability, cost or expense, including attorneys’ fees and expenses, arising out of or in connection with any act, omission, delay or refusal made by you in reliance upon any signature, endorsement, assignment, certificate, order, request, notice, instruction or other instrument or document reasonably believed by you to be valid, genuine and sufficient and in accepting any tender or effecting any transfer of Private Notes reasonably believed by you in good faith to be authorized, and in delaying or refusing in good faith to accept any tenders or effect any transfers of Private Notes; provided, however, that anything in this Agreement to the contrary notwithstanding, the Company shall not be liable for indemnification or otherwise for any loss, liability, cost or expense to the extent arising out of your gross negligence or willful misconduct. In no case shall the Company be liable |
| under this indemnity with respect to any claim against you unless the Company shall be notified by you, by letter or cable or by facsimile which is confirmed by letter, of the written assertion of a claim against you or of any other action commenced against you, promptly after you shall have received any such written assertion or notice of commencement of action. The Company shall be entitled to participate, at its own expense, in the defense of any such claim or other action, and, if the Company so elects, the Company may assume the defense of any pending or threatened action against you in respect of which indemnification may be sought hereunder, in which case the Company shall not thereafter be responsible for the subsequently-incurred fees and disbursements of legal counsel for you under this paragraph so long as the Company shall retain counsel reasonably satisfactory to you to defend such suit; provided, that the Company shall not be entitled to assume the defense of any such action if the named parties to such action include both you and the Company and representation of both parties by the same legal counsel would, in the written opinion of your counsel, be inappropriate due to actual or potential conflicting interests between you and the Company. You understand and agree that the Company shall not be liable under this paragraph for the fees and expenses of more than one legal counsel for you. Anything in this Agreement to the contrary notwithstanding, in no event shall the Exchange Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Exchange Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. | |
| 21. You shall arrange to comply with all requirements under the tax laws of the United States, including those relating to missing Tax Identification Numbers, and shall file any appropriate reports with the Internal Revenue Service. The Company understands that you are required, in certain instances, to deduct twenty-eight percent (28%) with respect to interest paid on the Exchange Notes and proceeds from the sale, exchange, redemption or retirement of the Exchange Notes from holders who have not supplied their correct Taxpayer Identification Number or required certification. Such funds will be turned over to the Internal Revenue Service in accordance with applicable regulations. | |
| 22. You shall notify the Company of the amount of any transfer taxes payable in respect of the exchange of Private Notes and, upon receipt of a written approval from the Company, shall deliver or cause to be delivered, in a timely manner to each governmental authority to which any transfer taxes are payable in respect of the exchange of Private Notes, your check in the amount of all transfer taxes so payable, and the Company shall reimburse you for the amount of any and all transfer taxes payable in respect of the exchange of Private Notes; provided, however, that you shall reimburse the Company for amounts refunded to you in respect of your payment of any such transfer taxes, at such time as any such refund is received by you. | |
| 23. This Agreement and your appointment as Exchange Agent hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such state, and without regard to conflicts of law principles that would apply the law of any other jurisdictions. | |
| 24. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Without limitation of the foregoing, the parties hereto expressly agree that no holder of Private Notes or Exchange Notes shall have any right, benefit or remedy of any nature whatsoever under, or by reason of, this Agreement. | |
| 25. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement. | |
| 26. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. |
| 27. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part except by a written instrument signed by a duly authorized representative of the party to be charged. | |
| 28. Unless otherwise provided herein, all notices, requests and other communications to any party hereunder shall be in writing (including facsimile or similar writing) and shall be given to such party, addressed to it, at its address or fax number set forth below: |
if to the Company, to:
| Lennar Corporation | |
| 000 Xxxxxxxxx 000xx Xxxxxx | |
| Xxxxx, Xxxxxxx 00000 | |
| Telephone: (000) 000-0000 | |
| Fax: (000) 000-0000 | |
| Attention: Xxxxxxx Xxxxxxx, Esq. |
with a copy to:
| Xxxxxxxx Chance US LLP | |
| 00 Xxxx 00xx Xxxxxx | |
| Xxx Xxxx, Xxx Xxxx 00000 | |
| Telephone: (000) 000-0000 | |
| Fax: (000) 000-0000 | |
| Attention: Xxxxx X. Xxxxxxxxx, Esq. |
If to the Exchange Agent, to:
| X.X. Xxxxxx Trust Company, National Association, as Exchange Agent | |
| 00000 Xxxxxxxx Xxxx Xxxx | |
| Xxxxxxxx 000, 0xx Xxxxx | |
| Xxxxxxxxxxxx, Xxxxxxx 00000 | |
| Telephone: (000) 000-0000 | |
| Fax: (000) 000-0000 | |
| Attention: Xxxxxxxx Xxxxxxxx |
| 29. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days following the Expiration Date. Notwithstanding the foregoing, paragraphs 17, 19, 21 and 23 shall survive the termination of this Agreement. Upon any termination of this Agreement, you shall promptly deliver to the Company any certificates for Notes, funds or property then held by you as Exchange Agent under this Agreement. | |
| 30. This Agreement shall be binding and effective as of the date hereof. |
Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy.
| LENNAR CORPORATION |
| By: |
|
|
|
| Name: |
| Title: |
| Accepted as of the date first above written: | |
| X.X. XXXXXX TRUST COMPANY, NATIONAL | |
| ASSOCIATION, as Exchange Agent |
| By: |
|
|
|
| Name: Xxxxxxxx Xxxxxxxx |
| Title: | Vice President |
