EXHIBIT 10.m
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (FACILITY A)
First Amendment to Revolving Credit Agreement (Facility A) (this
"Amendment"), dated as of January 20, 1998 (the "Amendment Date"), by and among
LENNAR CORPORATION, a corporation organized and existing under the laws of the
State of Delaware (the "Company"), the Subsidiaries of the Company listed in
Schedule I (said Subsidiaries, together with the Company, hereinafter
individually and collectively referred to as the "Borrower") to the Agreement
(as hereinafter defined), the lenders listed in Schedule II to the Agreement
(the "Lenders"), and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (the "Agent"),
amending the Revolving Credit Agreement (Facility A), dated as of October 31,
1997, by and among the Borrower, the Lenders and the Agent (the "Agreement").
RECITAL
The Borrower has requested that the Lenders amend the Agreement to provide
for a possible increase in the Aggregate Facility A Commitment from $450,000,000
to $500,000,000 and to increase the Swing Line Commitment from $15,000,000 to
$30,000,000, and the Lenders are willing to make such amendment, all upon the
terms and subject to the conditions set forth herein.
AGREEMENT
In consideration of the foregoing and of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT RECITAL. The Recital at the beginning of the Agreement
is amended in its entirety to read as follows:
The Borrower desires to obtain from the Lenders and the Lenders are
willing to provide to the Borrower revolving credit loans in an aggregate
principal amount outstanding from time to time not to exceed $450,000,000
(subject to increase as provided herein), upon the terms and subject to
the conditions hereinafter set forth.
2. CAPITALIZED TERMS. Capitalized terms used in this Amendment, and
not otherwise defined or redefined herein, shall have the meanings ascribed to
them in the Agreement.
3. DEFINITIONS. The following definitions contained in Section 1 of
the Agreement are amended in their entirety to read as follows:
"AGGREGATE FACILITY A COMMITMENT" means $450,000,000, as such amount
may be increased pursuant to Section 2.22 (but not beyond $500,000,000) or
reduced from time to time pursuant to the terms hereof.
"LENDERS" means the lending institutions listed on the signature
pages of this Agreement, any additional financial institutions which
become Lenders pursuant to Section 2.22, and the respective successors and
permitted assigns of such lending institutions.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank
to make Swing Line Loans up to a maximum of $30,000,000 at any time
outstanding.
4. INCREASE IN FACILITY A COMMITMENT; ADMISSION OF ADDITIONAL
LENDERS. A new Section 2.22 is added to the Agreement to read as follows:
SECTION 2.22 INCREASE IN FACILITY A COMMITMENT; ADMISSION OF
ADDITIONAL LENDERS.
(a) Upon the approval of the Agent, additional financial
institutions may become Lenders hereunder provided that (i) each such
additional Lender and the amount of the Facility A Commitment of such
Lender have been approved in writing by Borrower, (ii) Borrower shall have
agreed in writing that all of the terms, covenants and provisions of this
Agreement and all of the other Facility A Loan Documents shall, from and
after the admission of each additional Lender, inure to the benefit of
such Lender, (iii) each additional Lender shall agree in writing to the
amount of its Facility A Commitment and to be bound, from and after the
date of its admission as an additional Lender, by all of the terms,
conditions and provisions of this Agreement and the Facility A Loan
Documents, to the same extent and with the same effect as if such
additional Lender were an original signatory to this Agreement, (iv)
Borrower shall have executed and delivered a Facility A Note which is
payable to the order of the additional Lender in the amount of its
Facility A Commitment, and (v) in no event shall the Aggregate Facility A
Commitment at any time exceed $500,000,000. The form and substance of the
documents required under clause (ii), (iii) and (iv) above must be fully
acceptable to the Agent. The Agent shall provide written notice to all of
the other Lenders hereunder of the admission of any additional Lender
pursuant to this Section 2.22 and shall furnish to each of the other
Lenders a copy of the agreements required under clauses (ii) and (iii)
above.
(b) Upon the admission of any additional Lender pursuant to this
Section 2.22, such Lender shall make a Loan to Borrower in an amount
sufficient, upon application of the proceeds thereof to the reduction of
the outstanding
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Floating Rate Advances held by the other Lenders, to cause the principal
amount outstanding under the Loans made by each Lender (including, without
limitation, the Loan made by the additional Lender) to be in proportion to
the ratio that the respective Facility A Commitments of the Lenders
(including, without limitation, the additional Lender) bear to the
Aggregate Facility A Commitment. The Borrower hereby irrevocably
authorizes each additional Lender to fund to the Agent the Loan required
to be made pursuant to the immediately preceding sentence for application
to the reduction of the outstanding Floating Rate Advances. To the extent
that the amount of outstanding Floating Rate Advances at the time of the
proposed admission of a Lender hereunder is less than the amount of the
Loan required to be made by the additional Lender to achieve each Lender's
Loan being in such proportion, then the obligation of the additional
Lender to fund its Pro Rata Share of the Floating Rate Advances shall be
deferred until there are sufficient Floating Rate Advances, as a result of
the conversion of Fixed Rate Advances in accordance with the terms of this
Agreement, to achieve such proportion. After the additional Lender makes
the Loan required to be made under this Section 2.22(b), each Facility A
Advance under this Agreement shall consist of Loans made ratably by the
several Lenders in accordance with this Article II.
(c) Notwithstanding the forgoing provisions of this Section 2.22, in
lieu of one or more new financial institutions becoming Lenders hereunder
with respect to any increase in the Facility A Commitment, First Chicago
shall have the right to fund all or any part of such increase and to that
extent increase the Facility A Commitment of First Chicago as a Lender
hereunder.
5. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
when (A) the Agent shall have received (i) counterparts of this Amendment duly
executed by the Borrower and each of the Lenders, and (ii) each of the documents
specified in subsections (a) - (f) below (with all documents required below,
except as otherwise specified, to be dated the date of receipt thereof by the
Agent, which date shall be the same for all such documents, each of such
documents to be in form and substance satisfactory to the Agent), and (B) the
condition specified in subsection (g) below shall have been satisfied:
(a) The favorable written opinion by Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin, counsel for the Borrower, addressed to the Lenders and in
form and substance satisfactory to the Agent, and dated the Amendment Date, that
(i) this Amendment has been duly authorized, executed and delivered by the
Borrower, (ii) this Amendment is enforceable in accordance with its terms,
except as the rights and remedies of the Lenders or First Chicago thereunder may
be limited by (A) applicable bankruptcy, reorganization, insolvency and other
laws effecting creditors' rights generally from time to time in effect, (B) the
exercise of the discretionary powers of the court before which any proceeding
seeking equitable remedies (including, without limitation, specific performance
and injunctive relief) may be brought, and (C) such other qualifications
expressed in
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the opinion, PROVIDED that such qualifications are acceptable to Agent; and
(iii) nothing contained in this Amendment extinguishes, terminates or in any way
adversely affects the rights or remedies of the Lenders under the Subsidiary
Guarantees or the validity or enforceability thereof in accordance with their
respective terms. Such counsel may rely, in their opinion, on the opinions of
special counsel to the Borrower referred to in subsection 6(b) below, as to
matters of law of the State of Illinois. The Borrower hereby instructs its
counsel to prepare its opinion and deliver it to the Lenders for their benefit,
and such opinion shall contain a statement to such effect.
(b) The favorable written opinion of Xxxxxxx & Xxxxx, special
counsel to the Borrower, addressed to the Lenders and in form and substance
satisfactory to the Agent, dated the Amendment Date, that (i) no authorization,
consent, approval, license or exemption of, or filing nor registration with or
other action by any Illinois, United States federal or Delaware governmental
department, commission, board, bureau, regulatory body, agency or
instrumentality or, to the best knowledge of such counsel, any court is or will
be necessary for the execution, delivery and performance by the Borrower of this
Amendment, (ii) this Amendment constitutes the legal, valid and binding
obligations of the Borrower, enforceable in accordance with its terms, except as
the rights and remedies of the Lenders thereunder may be limited by (A)
applicable bankruptcy, reorganization, insolvency and other laws effecting
creditors' rights generally from time to time in effect, (B) the exercise of the
discretionary powers of the court before which any proceeding seeking equitable
remedies (including, without limitation, specific performance and injunctive
relief) may be brought, and (C) such other qualifications expressed in the
opinion, PROVIDED that such qualifications are acceptable to Agent; and (iii)
nothing contained in this Amendment extinguishes, terminates or in any way
adversely affects the rights or remedies of the Lenders under the Subsidiary
Guarantees or the validity or enforceability thereof in accordance with their
respective terms. Such opinion shall also cover the matters set forth in clause
(i) of this subsection with respect to each Subsidiary Guaranty. The Borrower
hereby instructs its special counsel to prepare its opinion and deliver it to
Lenders for their benefit, and such opinion shall contain a statement to such
effect.
(c) The favorable written opinion of Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A., special counsel to the Agent and the Lenders, dated
the Amendment Date, addressed to the Lenders to the effect that: while it has
not independently considered the matters covered by the opinions provided
pursuant to subsections (a) and (b) above, to the extent necessary to enable it
to express the conclusions stated therein, those opinions of counsel and the
other documents provided pursuant to this Amendment are substantially responsive
to the requirements of this Amendment.
(d) The following supporting documents with respect to each Borrower: (i)
with respect to each Borrower which was formed after October 31, 1997, a copy of
its certificate or articles of incorporation, certified as of a date reasonably
close to the Amendment Date to be a true and accurate copy by the Secretary of
State of its state of incorporation, (ii) with respect to
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all Borrowers formed prior to October 31, 1997, a certificate of its Secretary
or Assistant Secretary, dated the Amendment Date, to the effect that there have
been no amendments to its certificate or articles of incorporation since October
31, 1997; (iii) a certificate of the Secretary of State of its state of
incorporation, dated as of a date reasonably close to the Amendment Date, as to
its existence and (if available) good standing; (iv) a certificate of the
Secretary of State of each jurisdiction, other than its state of incorporation,
in which it does business, as to its qualification as a foreign corporation,
dated as of a date reasonably close to the Amendment Date; (v) a copy of its
by-laws, certified by its Secretary or Assistant Secretary to be a true and
accurate copy of its by-laws in effect on the Amendment Date, or a certificate
of its Secretary or Assistant Secretary to the effect that there have been no
amendments thereto since October 31, 1997; (vi) a certificate of its Secretary
or Assistant Secretary, dated the Amendment Date, as to the incumbency and
signatures of its officers who have executed any documents in connection with
the transactions contemplated by this Amendment; (vii) a copy of resolutions of
its Board of Directors or the Executive Committee of its Board of Directors,
certified by its Secretary or Assistant Secretary as of the Amendment Date to be
a true and accurate copy of resolutions duly adopted by such Board of Directors
or Executive Committee that are in full force and effect on the Amendment Date,
authorizing the execution and delivery by it of this Amendment and the
performance by it of all its obligations hereunder; and (viii) such additional
supporting documents and other information with respect to its operations and
affairs as the Agent may reasonably request.
(e) A certificate signed by a duly authorized officer of each
Borrower stating that: (i) the representations and warranties of the Borrower
contained in Article IV of the Agreement and in Section 6 of this Amendment are
correct and accurate on and as of the Amendment Date as though made on and as of
the Amendment Date and (ii) no event has occurred and is continuing which
constitutes an Event of Default or Unmatured Default under the Agreement.
(f) Such other documents as any Lender or its counsel may reasonably
request.
(g) There shall not have occurred any changes in the consolidated
financial condition or results of operations of the Borrower from that reflected
in the financial statements dated August 31, 1997 which has or reasonably could
be expected to have, in the judgment of the Required Lenders, a Material Adverse
Effect on the Borrower's operations, taken as a whole.
6. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIS AMENDMENT,
ETC. The Borrower hereby represents and warrants to the Agent and the Lenders
that the execution and delivery by the Borrower of this Amendment and each other
document executed by the Borrower in connection herewith and the performance by
the Borrower of all its obligations hereunder and thereunder and any and all
actions taken by the Borrower (i) have been duly authorized by all requisite
corporate action of the Borrower, (ii) will not violate or be in conflict with
(a) any provisions of law (including, without limitation, any applicable usury
or similar law), (b) any
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order, rule, regulation, writ, judgment, injunction, decree or award of any
court or other agency of government, or (c) any provision of its certificate or
articles of incorporation or by-laws, (iii) will not violate, be in conflict
with, result in a breach of or constitute (with or without the giving of notice
or the passage of time or both) a default under any material indenture,
agreement or other instrument to which it is a party or by which it or any of
its properties or assets is or may be bound, and (iv) except as otherwise
contemplated by the Agreement, will not result in the creation or imposition of
any lien, charge or encumbrance upon, or any security interest in, any of its
properties or assets. This Amendment constitutes the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
7. LOCATION OF EXECUTION. This Amendment has been executed by the
Borrower in Los Angeles, California, and delivered to the Agent in Chicago,
Illinois. The Borrower reaffirms its obligation to reimburse and indemnify the
Lenders for any documentary stamp tax or other taxes which may be imposed upon
the Lenders in respect of the Agreement or any Facility A Loan Documents.
8. NO OTHER MODIFICATIONS. Except as expressly amended or modified by
the terms hereof, the Agreement and the other Facility A Loan Documents shall
remain in full force and effect. This Amendment shall not affect, modify or
diminish the obligations of Borrower which have accrued prior to the Amendment
Date including, but not limited to, obligations to pay commitment fees and
interest at the levels and rates as in effect prior to the Amendment Date.
9. REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The Borrower
hereby certifies that the representations and warranties contained in the
Agreement and the other Facility A Loan Documents continue to be true and
correct and that no Event of Default or Unmatured Default has occurred.
10. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the Amendment Date.
[Signatures begin on next page]
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BORROWER:
LENNAR CORPORATION AND EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I
By: /s/ XXXXX XXXXX
-----------------------------------------------
Xxxxx Xxxxx as Vice President or authorized
signatory of each of such corporations
Address:
Lennar Corporation
000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Vice President-Finance
FACILITY A COMMITMENTS: LENDERS:
$40,645,161.29 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ XXXXXXX XXXXXXX
-----------------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
Address:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
00xx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Vice President
with a copy to:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Law Department
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$34,838,709.68 NATIONSBANK, N.A.
By: /s/ XXXXXX XXXXXXX
-----------------------------------------------
XXXXXX XXXXXXX, XX.VICE PRESIDENT
Address:
000 X.X. 0xx Xxxxxx, 00xx XX
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
$34,838,709.68 CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ XXXXX X. XXXXXX
-----------------------------------------------
XXXXX X. XXXXXX, FIRST VICE PRESIDENT &
MANAGER
Address:
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxx, Vice President
$34,838,709.68 BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------------------
XXXX X. XXXXXXXXX, VICE PRESIDENT
Address:
000 X. XxXxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxxxx
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$34,838,709.68 COMERICA BANK
By: /s/ XXXXXX X. XXXXX
-----------------------------------------------
___________________, ______________________
Address:
One Detroit Center
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxx, Vice President
$30,483,870.97 FLEET NATIONAL BANK
By: /s/ XXXXXXX XXXXX
-----------------------------------------------
XXXXXXX XXXXX, VICE PRESIDENT
Address:
000 Xxxxxxxxxxx Xxxxxx
XXXX0000 - 8th FL
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xx. Xxxxx X. XxXxxxxxxx
$30,483,870.97 GUARANTY FEDERAL BANK, F.S.B.
By: /s/ XXXXXXXX XXX
-----------------------------------------------
XXXXXXXX XXX, ASST. VICE PRES.
Address:
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxx
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$23,225,806.45 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ XXXXX XXXX
-----------------------------------------------
XXXXX XXXX, GENERAL MANAGER
Address:
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Mr. Xxxxxxx Xxxxxx, Vice President
$23,225,806.45 U.S. BANK NATIONAL ASSOCIATION
By: /s/ XXXXXXXX XXXXXX
-----------------------------------------------
XXXXXXXX XXXXXX, VICE PRESIDENT
Address:
Real Estate Banking Division
000 0xx Xxxxxx Xxxxx
First Bank Place
Minneapolis, Minnesota 55402
Attention: Xx. Xxxxxxxx Xxxxxx
$23,225,806.45 PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXXX XXXX
-----------------------------------------------
XXXXXXX X. XXXX, VICE PRESIDENT
Address:
Xxx Xxxxx Xxxxxx
Xxxxx X0-XXXX-00-0
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxx
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$23,225,806.45 SOCIETE GENERALE
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------------
XXXXX X. XXXXXXX, VICE PRESIDENT
Address:
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xx Xxxxxxxxx
$17,419,354.84 AMSOUTH BANK
By: /s/ XXXXX XXXXXXXX
-----------------------------------------------
XXXXX XXXXXXXX, VICE PRESIDENT
Address:
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxx
$14,516,129.03 XXXXXXX BANK, N.A., SOUTH FLORIDA
By: /s/ XXXX X. XXXXXX
-------------------------------------------
XXXX X. XXXXXX, GROUP SR. VICE PRESIDENT
Address:
000 Xxxxxxxx Xxxxxx, 0xx XX
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx, Group Vice President
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$14,516,129.03 THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ XXXXXXX XXXXXXX
-------------------------------------------
XXXXXXX XXXXXXX, JOINT GENERAL MANAGER
Address:
Marquis Two Tower, Suite 2400
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
$14,516,129.03 THE FUJI BANK AND TRUST COMPANY
By: /s/ XXXXX XXXXXXXX
-------------------------------------------
XXXXX XXXXXXXX, VICE PRESIDENT & MANAGER
Address:
Two World Trade Center, 79th FL
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxx, Assistant Vice
President
$14,516,129.03 KREDIETBANK, N.V.
By: /s/ X. XXXXXXXX /s/ XXXXXXX XXXXXX
-----------------------------------------------
XXXXXX XXXXXXXX, VICE PRESIDENT
XXXXXXX X. XXXXXX, VICE PRESIDENT
Address:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
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$14,516,129.03 SAKURA BANK
By: /s/ XXXXXXXX XXXXXXXX
-------------------------------------------
XXXXXXXX XXXXXXXX, V.P. & SENIOR MANAGER
Address:
Marquis 1 Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx Xxxxxxx
$14,516,129.03 SUNTRUST BANK, MIAMI, N.A.
By: /s/ XXXXXX XXXXXX
-------------------------------------------
XXXXXX X. XXXXXX, SENIOR VICE PRESIDENT
Address:
Real Estate Division
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxxx, Senior Vice
President
$11,612,903.23 BANQUE PARIBAS
By: /s/ XXXXXX XXXXXX /s/ XXXXX XXXXXXXXX
-------------------------------------------
XXXXXX X. XXXXXX, VICE PRESIDENT
XXXXX XXXXXXXXX, VICE PRESIDENT
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx
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FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (FACILITY B)
First Amendment to Revolving Credit Agreement (Facility B) (this
"Amendment"), dated as of January 20, 1998 (the "Amendment Date"), by and among
LENNAR CORPORATION, a corporation organized and existing under the laws of the
State of Delaware (the "Company"), the Subsidiaries of the Company listed in
Schedule I (said Subsidiaries, together with the Company, hereinafter
individually and collectively referred to as the "Borrower") to the Agreement
(as hereinafter defined), the lenders listed in Schedule II to the Agreement
(the "Lenders"), and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (the "Agent"),
amending the Revolving Credit Agreement (Facility B), dated as of October 31,
1997, by and among the Borrower, the Lenders and the Agent (the "Agreement").
RECITAL
The Borrower has requested that the Lenders amend the Agreement to
increase the Aggregate Facility B Commitment from $100,000,000 to $150,000,000,
and the Lenders are willing to make such amendment, all upon the terms and
subject to the conditions set forth herein.
AGREEMENT
In consideration of the foregoing and of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT RECITAL. The Recital at the beginning of the Agreement
is amended in its entirety to read as follows:
The Borrower desires to obtain from the Lenders and the Lenders are
willing to provide to the Borrower revolving credit loans in an aggregate
principal amount outstanding from time to time not to exceed $150,000,000,
upon the terms and subject to the conditions hereinafter set forth.
2. CAPITALIZED TERMS. Capitalized terms used in this Amendment, and
not otherwise defined or redefined herein, shall have the meanings ascribed to
them in the Agreement.
3. DEFINITIONS. The following definitions contained in Section 1 of
the Agreement are amended in their entirety to read as follows:
"AGGREGATE FACILITY A COMMITMENT" means $450,000,000, as such amount
may be increased or reduced from time to time pursuant to the terms of the
Facility A Credit Agreement.
"AGGREGATE FACILITY B COMMITMENT" means $150,000,000, as such amount
may be reduced from time to time pursuant to the terms hereof.
"LENDERS" means the lending institutions listed on the signature
pages of this Agreement, any additional financial institutions which
become Lenders pursuant to Section 2.21, and the respective successors and
permitted assigns of such lending institutions.
4. INCREASE IN FIRST CHICAGO COMMITMENT. The Facility B Commitment of
First Chicago is hereby increased from $9,032,258.02 to $59,032,258.02, and the
Facility B Note and Facility B Term Note issued to First Chicago on the
Effective Date under the Agreement shall be exchanged with the Borrower for a
new Facility B Note and Facility B Term Note, each payable to First Chicago
(collectively, the "First Chicago Notes") and reflecting First Chicago's
increased Facility B Commitment. The dollar amount of the Facility B Commitment
of each of the Lenders other than First Chicago is and shall remain unaffected
by this Amendment.
5. ADMISSION OF ADDITIONAL LENDERS. A new Section 2.21 is added to
the Agreement to read as follows:
SECTION 2.21 ADMISSION OF ADDITIONAL LENDERS.
(a) Upon the approval of the Agent, additional financial
institutions may become Lenders hereunder provided that (i) each such
additional Lender and the amount of the Facility B Commitment of such
Lender have been approved in writing by Borrower, (ii) Borrower shall have
agreed in writing that all of the terms, covenants and provisions of this
Agreement and all of the other Facility B Loan Documents shall, from and
after the admission of each additional Lender, inure to the benefit of
such Lender, (iii) each additional Lender shall agree in writing to the
amount of its Facility B Commitment and to be bound, from and after the
date of its admission as an additional Lender, by all of the terms,
conditions and provisions of this Agreement and the Facility B Loan
Documents, to the same extent and with the same effect as if such
additional Lender were an original signatory to this Agreement, (iv)
Borrower shall have executed and delivered a Facility B Note which is
payable to the order of the additional Lender in the amount of its
Facility B Commitment, and (v) in no event shall the Aggregate Facility B
Commitment at any time exceed $150,000,000. The form and substance of the
documents required under clause (ii), (iii) and (iv) above must be fully
acceptable to the Agent. The Agent shall provide written notice to all of
the other Lenders hereunder of the admission of any additional Lender
pursuant to this Section 2.21 and shall furnish to each of the other
Lenders a copy of the agreements required under clauses (ii) and (iii)
above.
(b) Upon the admission of any additional Lender pursuant to this
Section 2.21, such Lender shall make a Loan to Borrower in an amount
sufficient,
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upon application of the proceeds thereof to the reduction of the
outstanding Floating Rate Advances held by the other Lenders, to cause the
principal amount outstanding under the Loans made by each Lender
(including, without limitation, the Loan made by the additional Lender) to
be in proportion to the ratio that the respective Facility B Commitments
of the Lenders (including, without limitation, the additional Lender) bear
to the Aggregate Facility B Commitment. The Borrower hereby irrevocably
authorizes each additional Lender to fund to the Agent the Loan required
to be made pursuant to the immediately preceding sentence for application
to the reduction of the outstanding Floating Rate Advances. To the extent
that the amount of outstanding Floating Rate Advances at the time of the
proposed admission of a Lender hereunder is less than the amount of the
Loan required to be made by the additional Lender to achieve each Lender's
Loan being in such proportion, then the obligation of the additional
Lender to fund its Pro Rata Share of the Floating Rate Advances shall be
deferred until there are sufficient Floating Rate Advances, as a result of
the conversion of Fixed Rate Advances in accordance with the terms of this
Agreement, to achieve such proportion. After the additional Lender makes
the Loan required to be made under this Section 2.21(b), each Facility A
Advance under this Agreement shall consist of Loans made ratably by the
several Lenders in accordance with this Article II.
6. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
when (A) the Agent shall have received (i) counterparts of this Amendment duly
executed by the Borrower and each of the Lenders, (ii) the First Chicago Notes,
duly executed by the Borrower, and (iii) each of the documents specified in
subsections (a) - (f) below (with all documents required below, except as
otherwise specified, to be dated the date of receipt thereof by the Agent, which
date shall be the same for all such documents, each of such documents to be in
form and substance satisfactory to the Agent), and (B) the condition specified
in subsection (g) below shall have been satisfied:
(a) The favorable written opinion by Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin, counsel for the Borrower, addressed to the Lenders and in
form and substance satisfactory to the Agent, and dated the Amendment Date, that
(i) this Amendment and the First Chicago Notes have been duly authorized,
executed and delivered by the Borrower, (ii) this Amendment and the First
Chicago Notes are enforceable in accordance with their respective terms, except
as the rights and remedies of the Lenders or First Chicago thereunder may be
limited by (A) applicable bankruptcy, reorganization, insolvency and other laws
effecting creditors' rights generally from time to time in effect, (B) the
exercise of the discretionary powers of the court before which any proceeding
seeking equitable remedies (including, without limitation, specific performance
and injunctive relief) may be brought, and (C) such other qualifications
expressed in the opinion, PROVIDED that such qualifications are acceptable to
Agent; and (iii) nothing contained in this Amendment extinguishes, terminates or
in any way adversely affects the rights or remedies of the Lenders under the
Subsidiary Guarantees or the validity or enforceability thereof in accordance
with their respective terms. Such counsel may rely, in their opinion, on the
opinions of special counsel to the Borrower referred to in subsection 6(b)
below, as to matters of law of the State of
-3-
Illinois. The Borrower hereby instructs its counsel to prepare its opinion and
deliver it to the Lenders for their benefit, and such opinion shall contain a
statement to such effect.
(b) The favorable written opinion of Xxxxxxx & Xxxxx, special
counsel to the Borrower, addressed to the Lenders and in form and substance
satisfactory to the Agent, dated the Amendment Date, that (i) no authorization,
consent, approval, license or exemption of, or filing nor registration with or
other action by any Illinois, United States federal or Delaware governmental
department, commission, board, bureau, regulatory body, agency or
instrumentality or, to the best knowledge of such counsel, any court is or will
be necessary for the execution, delivery and performance by the Borrower of this
Amendment or the First Chicago Notes, (ii) this Amendment and the First Chicago
Notes constitute the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as the rights and
remedies of the Lenders and First Chicago thereunder may be limited by (A)
applicable bankruptcy, reorganization, insolvency and other laws effecting
creditors' rights generally from time to time in effect, (B) the exercise of the
discretionary powers of the court before which any proceeding seeking equitable
remedies (including, without limitation, specific performance and injunctive
relief) may be brought, and (C) such other qualifications expressed in the
opinion, PROVIDED that such qualifications are acceptable to Agent; and (iii)
nothing contained in this Amendment extinguishes, terminates or in any way
adversely affects the rights or remedies of the Lenders under the Subsidiary
Guarantees or the validity or enforceability thereof in accordance with their
respective terms. Such opinion shall also cover the matters set forth in clause
(i) of this subsection with respect to each Subsidiary Guaranty. The Borrower
hereby instructs its special counsel to prepare its opinion and deliver it to
Lenders for their benefit, and such opinion shall contain a statement to such
effect.
(c) The favorable written opinion of Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A., special counsel to the Agent and the Lenders, dated
the Amendment Date, addressed to the Lenders to the effect that: while it has
not independently considered the matters covered by the opinions provided
pursuant to subsections (a) and (b) above, to the extent necessary to enable it
to express the conclusions stated therein, those opinions of counsel and the
other documents provided pursuant to this Amendment are substantially responsive
to the requirements of this Amendment.
(d) The following supporting documents with respect to each
Borrower: (i) with respect to each Borrower which was formed after October 31,
1997, a copy of its certificate or articles of incorporation, certified as of a
date reasonably close to the Amendment Date to be a true and accurate copy by
the Secretary of State of its state of incorporation, (ii) with respect to all
Borrowers formed prior to October 31, 1997, a certificate of its Secretary or
Assistant Secretary, dated the Amendment Date, to the effect that there have
been no amendments to its certificate or articles of incorporation since October
31, 1997; (iii) a certificate of the Secretary of State of its state of
incorporation, dated as of a date reasonably close to the Amendment Date, as to
its existence and (if available) good standing; (iv) a certificate of the
Secretary of State of each jurisdiction, other than its state of incorporation,
in which it does business, as to its
-4-
qualification as a foreign corporation, dated as of a date reasonably close to
the Amendment Date; (v) a copy of its by-laws, certified by its Secretary or
Assistant Secretary to be a true and accurate copy of its by-laws in effect on
the Amendment Date, or a certificate of its Secretary or Assistant Secretary to
the effect that there have been no amendments thereto since October 31, 1997;
(vi) a certificate of its Secretary or Assistant Secretary, dated the Amendment
Date, as to the incumbency and signatures of its officers who have executed any
documents in connection with the transactions contemplated by this Amendment;
(vii) a copy of resolutions of its Board of Directors or the Executive Committee
of its Board of Directors, certified by its Secretary or Assistant Secretary as
of the Amendment Date to be a true and accurate copy of resolutions duly adopted
by such Board of Directors or Executive Committee that are in full force and
effect on the Amendment Date, authorizing the execution and delivery by it of
this Amendment and the First Chicago Notes and the performance by it of all its
obligations thereunder; and (viii) such additional supporting documents and
other information with respect to its operations and affairs as the Agent may
reasonably request.
(e) A certificate signed by a duly authorized officer of each
Borrower stating that: (i) the representations and warranties of the Borrower
contained in Article IV of the Agreement and in Section 7 of this Amendment are
correct and accurate on and as of the Amendment Date as though made on and as of
the Amendment Date and (ii) no event has occurred and is continuing which
constitutes an Event of Default or Unmatured Default under the Agreement.
(f) Such other documents as any Lender or its counsel may reasonably
request.
(g) There shall not have occurred any changes in the consolidated
financial condition or results of operations of the Borrower from that reflected
in the financial statements dated August 31, 1997 which has or reasonably could
be expected to have, in the judgment of the Required Lenders, a Material Adverse
Effect on the Borrower's operations, taken as a whole.
7. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIS AMENDMENT,
Etc. The Borrower hereby represents and warrants to the Agent and the Lenders
that the execution and delivery by the Borrower of this Amendment, the First
Chicago Notes and each other document executed by the Borrower in connection
herewith and the performance by the Borrower of all its obligations hereunder
and thereunder and any and all actions taken by the Borrower (i) have been duly
authorized by all requisite corporate action of the Borrower, (ii) will not
violate or be in conflict with (a) any provisions of law (including, without
limitation, any applicable usury or similar law), (b) any order, rule,
regulation, writ, judgment, injunction, decree or award of any court or other
agency of government, or (c) any provision of its certificate or articles of
incorporation or by-laws, (iii) will not violate, be in conflict with, result in
a breach of or constitute (with or without the giving of notice or the passage
of time or both) a default under any material indenture, agreement or other
instrument to which it is a party or by which it or any of its properties or
assets is or may be bound, and (iv) except as otherwise contemplated by the
Agreement, will not result in the creation or imposition of any lien, charge or
encumbrance upon,
-5-
or any security interest in, any of its properties or assets. This Amendment and
the First Chicago Notes constitute legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
8. LOCATION OF EXECUTION. This Amendment and the First Chicago Notes
have been executed by the Borrower in Los Angeles, California, and delivered to
the Agent in Chicago, Illinois. The Borrower reaffirms its obligation to
reimburse and indemnify the Lenders for any documentary stamp tax or other taxes
which may be imposed upon the Lenders in respect of the Agreement, the First
Chicago Notes or any Facility B Loan Documents.
9. NO OTHER MODIFICATIONS. Except as expressly amended or modified by
the terms hereof, the Agreement and the other Facility B Loan Documents shall
remain in full force and effect. This Amendment shall not affect, modify or
diminish the obligations of Borrower which have accrued prior to the Amendment
Date including, but not limited to, obligations to pay commitment fees and
interest at the levels and rates as in effect prior to the Amendment Date.
10. REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The Borrower hereby
certifies that the representations and warranties contained in the Agreement and
the other Facility B Loan Documents continue to be true and correct and that no
Event of Default or Unmatured Default has occurred.
11. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the Amendment Date.
[Signatures begin on next page]
-6-
BORROWER:
LENNAR CORPORATION AND EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I
By: /s/ XXXXX XXXXX
-------------------------------------------
Xxxxx Xxxxx as Vice President or authorized
signatory of each of such corporations
Address:
Lennar Corporation
000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Vice President-Finance
FACILITY B COMMITMENTS: LENDERS:
$59,032,258.02 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ XXXXXXX XXXXXXX
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
Address:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
00xx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Vice President
with a copy to:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Law Department
-7-
$7,741,935.48 NATIONSBANK, N.A.
By: /s/ XXXXXX XXXXXXX
-------------------------------------------
XXXXXX XXXXXXX, XX. VICE PRESIDENT
Address:
000 X.X. 0xx Xxxxxx, 00xx XX
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
$7,741,935.48 CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
XXXXX X. XXXXXX, FIRST VICE PRESIDENT &
MANAGER
Address:
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxx, Vice President
$7,741,935.48 BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------------------
XXXX X. XXXXXXXXX, VICE PRESIDENT
Address:
000 X. XxXxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxxxx
-8-
$7,741,935.48 COMERICA BANK
By: /s/ XXXXXX X. XXXXX
-----------------------------------------------
XXXXXX X. XXXXX, __________________________
Address:
One Detroit Center
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxx, Vice President
$6,774,193.55 FLEET NATIONAL BANK
By: /s/ XXXXXXX XXXXX
-----------------------------------------------
XXXXXXX XXXXX, VICE PRESIDENT
Address:
000 Xxxxxxxxxxx Xxxxxx
XXXX0000 - 8th FL
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xx. Xxxxx X. XxXxxxxxxx
$6,774,193.55 GUARANTY FEDERAL BANK, F.S.B.
By: /s/ XXXXXXXX X. XXX
-----------------------------------------------
XXXXXXXX X. XXX, ASST. VICE PRESIDENT
Address:
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxx
-9-
$5,161,290.32 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ XXXXX XXXX
-----------------------------------------------
XXXXX XXXX, GENERAL MANAGER
Address:
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Mr. Xxxxxxx Xxxxxx, Vice President
$5,161,290.32 U.S. BANK NATIONAL ASSOCIATION
By: /s/ XXXXXXXX XXXXXX
-----------------------------------------------
XXXXXXXX XXXXXX, VICE PRESIDENT
Address:
Real Estate Banking Division
000 0xx Xxxxxx Xxxxx
First Bank Place
Minneapolis, Minnesota 55402
Attention: Xx. Xxxxxxxx Xxxxxx
$5,161,290.32 PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXXX XXXX
-----------------------------------------------
XXXXXXX X. XXXX, VICE PRESIDENT
Address:
Xxx Xxxxx Xxxxxx
Xxxxx X0-XXXX-00-0
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxx
-10-
$5,161,290.32 SOCIETE GENERALE
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------------
XXXXX X. XXXXXXX III, VICE PRESIDENT
Address:
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xx Xxxxxxxxx
$3,870,967.74 AMSOUTH BANK
By: /s/ XXXXX XXXXXXXX
-----------------------------------------------
XXXXX XXXXXXXX, VP
Address:
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxx
$3,225,806.45 XXXXXXX BANK, N.A., SOUTH FLORIDA
By: /s/ XXXX X. XXXXXX
-----------------------------------------------
XXXX X. XXXXXX, GROUP SR. VICE PRESIDENT
Address:
000 Xxxxxxxx Xxxxxx, 0xx XX
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx, Group Vice
President
-11-
$3,225,806.45 THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ XXXXXXX XXXXXXX
-----------------------------------------------
XXXXXXX XXXXXXX, JOINT GENERAL MANAGER
Address:
Marquis Two Tower, Suite 2400
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
$3,225,806.45 THE FUJI BANK AND TRUST COMPANY
By: /s/ XXXXX XXXXXXXX
-----------------------------------------------
XXXXX XXXXXXXX, VICE PRESIDENT & MNANAGER
Address:
Two World Trade Center, 79th FL
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxx, Assistant Vice President
$3,225,806.45 KREDIETBANK, N.V.
By: /s/ R XXXXXXXX /s/ XXXXXXX XXXXXX
-----------------------------------------------
XXXXXX XXXXXXXX, VICE PRESIDENT
XXXXXXX X. XXXXXX, VICE PRESIDENT
Address:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
-12-
$3,225,806.45 SAKURA BANK
By: /s/ XXXXXXXX XXXXXXXX
-----------------------------------------------
XXXXXXXX XXXXXXXX, V.P. & SENIOR MAnager
Address:
Marquis 1 Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx Xxxxxxx
$3,225,806.45 SUNTRUST BANK, MIAMI, N.A.
By: /s/ XXXXXX XXXXXX
-----------------------------------------------
XXXXXX X. XXXXXX, SENIOR VICE PRESIDENT
Address:
Real Estate Division
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxxx, Senior Vice President
$2,580,645.16 BANQUE PARIBAS
By: /s/ XXXXX XXXXXXXXX /s/ XXXXXX XXXXXX
-----------------------------------------------
XXXXX XXXXXXXXX, VICE PRESIDENT
XXXXXX X. XXXXXX, VICE PRESIDENT
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx
-13-
