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Exhibit 4.1
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LNR PROPERTY CORPORATION
as Issuer
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
as Trustee
-----------------------------------
INDENTURE
Dated as of March 24, 1998
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up to $350,000,000
9 3/8% Senior Subordinated Notes due 2008, Series A
9 3/8% Senior Subordinated Notes due 2008, Series B
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CROSS REFERENCE TABLE
TIA Section Indenture Section
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310(a)(1)................................................... 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.10
(b)..................................................... 7.8; 7.10; 11.2
(c)..................................................... N.A.
311(a)...................................................... 7.11
((b).................................................... 7.11
(c)..................................................... N.A.
312(a)...................................................... 2.5
(b)..................................................... 11.3
(c)..................................................... 11.3
313(a)...................................................... 7.6
(b)(1).................................................. N.A.
(b)(2).................................................. 7.6
(c)..................................................... 7.6; 11.2
(d)..................................................... 7.6
314(a)...................................................... 4.6; 4.8; 11.2
(b)..................................................... N.A.
(c)(1).................................................. 7.2; 11.4
(c)(2).................................................. 7.2; 11.4
(c)(3).................................................. N.A.
(d)..................................................... N.A.
(e)..................................................... 11.5
(f)..................................................... N.A.
315(a)...................................................... 7.1(b)
(b)..................................................... 7.5; 11.2
(c)..................................................... 7.1(a)
(d)..................................................... 6.5; 7.1(c)
(e)..................................................... 6.11
316(last sentence).......................................... 2.9
(a)(1)(A)............................................... 6.5
(a)(1)(B)............................................... 6.4
(a)(2).................................................. N.A.
(b)..................................................... 6.7
(c)..................................................... 9.4
317(a)(1)................................................... 6.8
(a)(2).................................................. 6.9
(b)..................................................... 2.4
318(a)...................................................... 11.1
(c)..................................................... 11.1
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N.A. means Not Applicable.
Note: This cross-reference table shall not, for any purpose, be deemed to be a
part of the Indenture.
(i)
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions............................................... 1
SECTION 1.2. Incorporation by Reference of TIA......................... 20
SECTION 1.3. Rules of Construction..................................... 21
ARTICLE II. THE NOTES
SECTION 2.1. Form and Dating........................................... 21
SECTION 2.2. Execution and Authentication; Aggregate Principal
Amount................................................. 22
SECTION 2.3. Registrar and Paying Agent................................ 24
SECTION 2.4. Paying Agent to Hold Assets in Trust...................... 24
SECTION 2.5. Holder Lists.............................................. 25
SECTION 2.6. Transfer and Exchange..................................... 25
SECTION 2.7. Replacement Notes......................................... 26
SECTION 2.8. Outstanding Notes......................................... 26
SECTION 2.9. Treasury Notes............................................ 26
SECTION 2.10. Temporary Notes........................................... 27
SECTION 2.11. Cancellation.............................................. 27
SECTION 2.12. Defaulted Interest........................................ 27
SECTION 2.13. CUSIP Number.............................................. 28
SECTION 2.14. Deposit of Monies......................................... 29
SECTION 2.15. Restrictive Legends....................................... 29
SECTION 2.16. Book-Entry Provisions for Global Security................. 29
SECTION 2.17. Special Transfer Provisions............................... 30
SECTION 2.18. Liquidated Damages Under Registration Rights
Agreement.............................................. 33
ARTICLE III. REDEMPTION
SECTION 3.1. Notices to Trustee........................................ 34
SECTION 3.2. Selection of Notes to Be Redeemed......................... 34
SECTION 3.3. Optional Redemption....................................... 34
SECTION 3.4. Notice of Redemption...................................... 35
SECTION 3.5. Effect of Notice Defect................................... 36
SECTION 3.6. Deposit of Redemption Price............................... 36
SECTION 3.7. Notes Redeemed in Part.................................... 36
ARTICLE IV. COVENANTS
SECTION 4.1. Payment of Notes.......................................... 37
SECTION 4.2. Maintenance of Office or Agency........................... 37
SECTION 4.3. Corporate Existence....................................... 37
SECTION 4.4. Payment of Taxes and Other Claims......................... 38
SECTION 4.5. Maintenance of Properties and Insurance................... 38
SECTION 4.6. Compliance Certificate; Notice of Default................. 38
SECTION 4.7. Compliance with Laws...................................... 39
SECTION 4.8. Commission Reports........................................ 39
SECTION 4.9. Waiver of Stay, Extension or Usury Laws................... 40
(ii)
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SECTION 4.10. Limitation on Restricted Payments......................... 40
SECTION 4.11. Limitation on Transactions with Affiliates................ 43
SECTION 4.12. Limitation on Incurrence of Additional
Indebtedness........................................... 44
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries................................. 45
SECTION 4.14. Change of Control......................................... 46
SECTION 4.15. Limitation on Preferred Stock of Subsidiaries............. 48
SECTION 4.16. Limitation on Liens and Guarantees........................ 48
SECTION 4.17. Conduct of Business....................................... 49
SECTION 4.18. Prohibition on Incurrence of Senior Subordinated Debt..... 49
ARTICLE V. SUCCESSOR CORPORATION
SECTION 5.1. Merger, Consolidation and Sale of Assets.................. 49
SECTION 5.2. Successor Corporation Substituted......................... 50
ARTICLE VI. REMEDIES
SECTION 6.1. Events of Default......................................... 50
SECTION 6.2. Acceleration.............................................. 52
SECTION 6.3. Other Remedies............................................ 53
SECTION 6.4. Waiver of Past Defaults................................... 53
SECTION 6.5. Control by Majority....................................... 54
SECTION 6.6. Limitation on Suits....................................... 54
SECTION 6.7. Right of Holders To Receive Payment....................... 54
SECTION 6.8. Collection Suit by Trustee................................ 55
SECTION 6.9. Trustee May File Proofs of Claim.......................... 55
SECTION 6.10. Priorities................................................ 56
SECTION 6.11. Undertaking for Costs..................................... 56
SECTION 6.12. Restoration of Rights and Remedies........................ 56
ARTICLE VII. TRUSTEE
SECTION 7.1. Duties of Trustee......................................... 57
SECTION 7.2. Rights of Trustee......................................... 58
SECTION 7.3. Individual Rights of Trustee.............................. 59
SECTION 7.4. Trustee's Disclaimer...................................... 59
SECTION 7.5. Notice of Default......................................... 59
SECTION 7.6. Reports by Trustee to Holders............................. 60
SECTION 7.7. Compensation and Indemnity................................ 60
SECTION 7.8. Replacement of Trustee.................................... 61
SECTION 7.9. Successor Trustee by Merger, Etc.......................... 62
SECTION 7.10. Eligibility; Disqualification............................. 62
SECTION 7.11. Preferential Collection of Claims Against LNR............. 63
ARTICLE VIII. DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Termination of Company's Obligations...................... 63
SECTION 8.2. Application of Trust Money................................ 66
SECTION 8.3. Repayment to LNR.......................................... 66
(iii)
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SECTION 8.4. Reinstatement............................................. 67
SECTION 8.5. Acknowledgment of Discharge by Trustee.................... 67
ARTICLE IX. MODIFICATION OF THE INDENTURE
SECTION 9.1. Without Consent of Holders................................ 67
SECTION 9.2. With Consent of Holders................................... 68
SECTION 9.3. Compliance with TIA....................................... 68
SECTION 9.4. Revocation and Effect of Consents......................... 69
SECTION 9.5. Notation on or Exchange of Notes.......................... 69
SECTION 9.6. Trustee to Sign Amendments, Etc........................... 69
ARTICLE X. SUBORDINATION
SECTION 10.1. Notes Subordinated to Senior Indebtedness Upon
Effectiveness of the Merger............................ 70
SECTION 10.2. Suspension of Payment When Senior Indebtedness is in
Default................................................ 70
SECTION 10.3. Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or
Reorganization of Company.............................. 72
SECTION 10.4. Holders to Be Subrogated to Rights of Holders of
Senior Indebtedness.................................... 73
SECTION 10.5. Obligations of LNR Unconditional.......................... 73
SECTION 10.6. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice...................................... 75
SECTION 10.7. Application by Trustee of Assets Deposited with It........ 75
SECTION 10.8. No Waiver of Subordination Provisions..................... 75
SECTION 10.9. Holders Authorize Trustee to Effectuate Subordination
of Notes............................................... 76
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness.............. 77
SECTION 10.11. This Article X Not to Prevent Events of Default........... 77
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness........................................... 77
ARTICLE XI. MISCELLANEOUS
SECTION 11.1. TIA Controls.............................................. 77
SECTION 11.2. Notices................................................... 78
SECTION 11.3. Communications by Holders with Other Holders.............. 79
SECTION 11.4. Certificate and Opinion as to Conditions Precedent........ 79
SECTION 11.5. Statements Required in Certificate or Opinion............. 79
SECTION 11.6. Rules by Trustee, Paying Agent, Registrar................. 80
SECTION 11.7. Legal Holidays............................................ 80
SECTION 11.8. Governing Law............................................. 80
SECTION 11.9. No Adverse Interpretation of Other Agreements............. 80
SECTION 11.10. No Personal Liability..................................... 80
SECTION 11.11. Successors................................................ 80
SECTION 11.12. Duplicate Originals....................................... 81
(iv)
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SECTION 11.13. Severability.............................................. 81
(v)
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INDENTURE, dated as of March 24, 1998, between LNR Property
Corporation, a Delaware corporation ("LNR"), and First Trust of New York,
National Association, as Trustee (the "Trustee").
LNR has duly authorized the creation of an issue of its 9 3/8%
Senior Subordinated Notes due 2008, Series A, and its 9 3/8% Senior Subordinated
Notes due 2008, Series B, to be issued in exchange for the 9 3/8% Senior
Subordinated Notes due 2008, Series A, pursuant to the Registration Rights
Agreement (as defined herein) and, to provide therefor, LNR has duly authorized
the execution and delivery of this Indenture. All things necessary to make the
Notes (as defined), when duly issued and executed by LNR, and authenticated and
delivered hereunder, the valid obligations of LNR, and to make this Indenture a
valid and binding agreement of LNR, have been done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders (as defined) of
LNR's 9 3/8% Senior Subordinated Notes due 2008, Series A and Series B.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of LNR or at
the time it merges or consolidates with or into LNR or any of its Subsidiaries
or assumed by LNR or any of its Subsidiaries in connection with the acquisition
of assets from such Person, and in each case not incurred by such Person or any
of its Subsidiaries in connection with, or in anticipation or contemplation of,
such Person becoming a Subsidiary of LNR or such acquisition, merger or
consolidation.
"Adjusted Consolidated EBITDA" means, with respect to any Person for
any period, the sum of Consolidated EBITDA plus any non-refundable housing tax
credits used by such Person and its Consolidated Subsidiaries to reduce the
amount of income taxes that would have been otherwise been payable by such
Person and its Consolidated Subsidiaries for such period.
"Additional Interest" shall have the meaning set forth in the
Registration Rights Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
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direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.16.
"Asset Acquisition" means (a) an Investment by LNR or any Subsidiary
of LNR in any other Person pursuant to which such Person shall become a
Subsidiary of LNR, or shall be merged or consolidated with or into LNR or any
Subsidiary of LNR, or (b) the acquisition by LNR or any Subsidiary of LNR of the
assets of any Person (other than a Subsidiary of LNR) which constitute all or
substantially all of the assets of such Person or comprise any division or line
of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by LNR or
any of its Subsidiaries (including any sale and leaseback transaction) to any
Person other than LNR or a Wholly Owned Subsidiary of LNR of (a) any Capital
Stock of any Subsidiary of LNR, or (b) any other property or assets of LNR or
any Subsidiary of LNR other than in the ordinary course of business.
"Authenticating Agent" has the meaning provided in Section 2.2.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Blockage Period" has the meaning provided in Section 10.2.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
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"Business Day" means any day other than a Saturday, Sunday or any
other day on which banking institutions in the City of New York are required or
authorized by law or other governmental action to be closed.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether voting or nonvoting) of corporate stock,
including each class of Common Stock and Preferred Stock of such Person and (ii)
with respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Service ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) money market funds which
invest substantially all their assets in securities of the types described in
clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of LNR or Leisure Colony to any Person or group of related Persons
for purposes of
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Section 13(d) of the Exchange Act (a "Group"), together with any Affiliates
thereof (whether or not otherwise in compliance with the provisions of this
Indenture), other than, in the case of Leisure Colony, a transaction with LNR or
any Wholly Owned Subsidiary of LNR; (ii) the approval by the holders of Capital
Stock of LNR of any plan or proposal for the liquidation or dissolution of LNR
(whether or not otherwise in compliance with the provisions of this Indenture);
(iii) any Person or Group (other than Xxxxxxx Xxxxxx and any Permitted
Transferees of Xxxxxxx Xxxxxx) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
LNR; (iv) Leisure Colony shall cease being a Wholly Owned Subsidiary of LNR; or
(v) a majority of the members of the Board of Directors of LNR are persons who
were not directors on the Issue Date and whose election was not approved by a
vote of at least a majority of the members of the Board of Directors of LNR in
office at the time of the election who either were members of such Board of
Directors on the Issue Date or whose election as members of such Board of
Directors was previously approved by such a majority.
"Change of Control Offer" has the meaning provided in Section 4.14.
"Change of Control Payment Date" has the meaning provided in Section
4.14.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any Person, any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or nonvoting) of such Person's common stock,
whether outstanding on the Issue Date or issued after the Issue Date, and
includes, without limitation, all series and classes of such common stock.
"Consolidated EBITDA" means, with respect to any Person for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary,
unusual or nonrecurring gains or losses or taxes attributable to sales or
dispositions outside the ordinary course of business), (B) Consolidated Interest
Expense and (C) Consolidated Non-cash Charges less any non-cash items increasing
Consolidated Net Income for such period, all as determined on a consolidated
basis for such Person and its Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Adjusted Consolidated EBITDA of such Person during the
four full fiscal quarters (the "Four
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Quarter Period") ending on or prior to the date of the transaction giving rise
to the need to calculate the Consolidated Fixed Charge Coverage Ratio (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
period of such calculation to (i) the incurrence or repayment of any
Indebtedness of such Person or any of its Subsidiaries (and the application of
the proceeds thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes pursuant to working
capital facilities, occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment, as the case may be (and
the application of the proceeds thereof), occurred on the first day of the Four
Quarter Period and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including any
Person who becomes a Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and also including
any Consolidated EBITDA (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Securities Act as
in effect on the Issue Date) (provided that such Consolidated EBITDA shall be
included only to the extent includible pursuant to the definition of
"Consolidated Net Income") attributable to the assets which are the subject of
the Asset Acquisition or Asset Sale) occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period. If such
Person or any of its Subsidiaries directly or indirectly guarantees Indebtedness
of a third Person, the preceding sentence shall give effect to the incurrence of
such guaranteed Indebtedness as if such Person or any Subsidiary of such Person
had directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date; (2) if interest on any Indebtedness actually incurred on the Transaction
Date may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate, or other rates,
then the interest rate in
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effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Interest Expense,
plus (ii) the product of (x) the amount of all dividend payments on any series
of Preferred Stock of such Person (other than dividends paid in Qualified
Capital Stock) paid, accrued or scheduled to be paid or accrued during such
period times (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated federal, state and
local tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum of, without duplication: (i) the aggregate of the
interest expense of such Person and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, including without limitation,
(a) any amortization of debt discount, (b) the net costs under Interest Swap
Obligations, (c) all capitalized interest and (d) the interest portion of any
deferred payment obligation; and (ii) the interest component of Capitalized
Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such
Person and its Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP, minus amortization or write off of deferred
financing costs.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided, however, that there shall be excluded therefrom (a) gains (and losses)
on an after-tax effected basis from Asset Sales or abandonments or reserves
relating thereto, (b) items classified as extraordinary or nonrecurring gains or
losses on an after tax-effected basis, (c) the net income or loss of any Person
acquired in a "pooling of interests" transaction accrued prior to the date it
becomes a Subsidiary of the referent Person or is merged or consolidated with
the referent Person or any Subsidiary of the referent Person, (d) the net income
(but not loss) of any Subsidiary of the referent Person to the extent that the
declaration of dividends or similar distributions by that Subsidiary of that
income is restricted, directly or indirectly, by operation of the terms of its
charter or constituent documents or any agreement, instrument, judgment, law,
order, statute, rule or governmental regulation, or for any other reason
whatsoever, (e) the net income or loss of any other Person, other than a
Consolidated Subsidiary of the referent Person, except (A) to the extent (in the
case of net income) of
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cash dividends or distributions paid to the referent Person, or to a Wholly
Owned Subsidiary of the referent Person (other than a Subsidiary described in
clause (d) above), by such other Person or (B) that the referent Person's share
of any net income or loss of such other Person under the equity method of
accounting for Affiliates shall not be excluded, (f) any restoration to income
of any contingency reserve of an extraordinary, nonrecurring or unusual nature,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date, (g) income
or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued), and (h) in the case of a successor to the referent
Person by consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor prior to such consolidation, merger or
transfer of assets.
"Consolidated Net Worth" means, with respect to any Person, the
consolidated stockholders' equity of such Person as of the end of the last
completed fiscal quarter ending on or prior to the date of the transaction
giving rise to the need to calculate Consolidated Net Worth, determined on a
consolidated basis in accordance with GAAP, less (without duplication) amounts
attributable to (i) Disqualified Capital Stock of such Person and (ii) interests
in such Person's Consolidated Subsidiaries not owned, directly or indirectly by
such Person.
"Consolidated Non-cash Charges" means, with respect to any Person
for any period, the aggregate depreciation, amortization, and other non-cash
charges of such Person and its Subsidiaries reducing Consolidated Net Income of
such Person and its Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP (excluding any such charges which require an
accrual of or a reserve for cash charges for any future period).
"Consolidated Subsidiary" means, with respect to any Person, a
Subsidiary of such Person, the financial statements of which subsidiary are
consolidated with the financial statements of such Person in accordance with
GAAP.
"consolidation" means, with respect to any Person, the consolidation
of the accounts of the Subsidiaries of such Person with those of such Person,
all in accordance with GAAP. The term "consolidated" has a correlative meaning
to the foregoing.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covenant Defeasance" has the meaning set forth in Section 8.1.
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"Credit Agreement" means the Revolving Credit Agreement dated as of
December 5, 1997 among LNR, certain Subsidiaries of LNR, the lenders party
thereto in their capacities as lenders thereunder and Bank of America National
Trust and Savings Association, as agent, together with the related documents
thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreement may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (provided, however, that such increase in
borrowings is permitted by Section 4.12 other than as Permitted Indebtedness) or
adding Subsidiaries of LNR as additional borrowers or guarantors thereunder) all
or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect LNR
or any Subsidiary of LNR against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Defeasance Payment" means any distribution from any defeasance
trust described under Section 8.1.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Designated Senior Indebtedness" means (i) Indebtedness under or in
respect of the Credit Agreement and (ii) any other Indebtedness constituting
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount of at least $25.0 million and is specifically designated in the
instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" by LNR.
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (other than as a result of a Change of Control) on or prior to the final
maturity of the Notes.
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"Event of Default" has the meaning provided in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the 9 3/8% Senior Subordinated Notes due
2008, Series B to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement or, with respect to Initial Notes issued under
this Indenture subsequent to the Issue Date pursuant to Section 2.2, a
registration rights agreement substantially identical to the Registration Rights
Agreement.
"Exchange Offer" has the meaning provided in the Registration Rights
Agreement.
"Existing Indebtedness" means Indebtedness of LNR and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the Issue Date, until such amounts are repaid.
"fair market value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of LNR acting reasonably and
in good faith and shall be evidenced by a Board Resolution of the Board of
Directors of LNR.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect on the Issue
Date.
"Global Note" has the meaning provided in Section 2.1.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of
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assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part) (but if in part, only to the extent
thereof); provided, however, that the term "guarantee" shall not include (A)
endorsements for collection or deposit in the ordinary course of business and
(B) guarantees (other than guarantees of Indebtedness) by LNR in respect of
assisting one or more Subsidiaries in the ordinary course of their respective
businesses, including without limitation guarantees of trade obligations and
operating leases, on ordinary business terms. The term "guarantee" used as a
verb has a corresponding meaning.
"Holder" means any holder of Notes.
"IAI Global Note" means, a permanent global note in registered form
representing the aggregate principal amount of Notes sold to Institutional
Accredited Investors.
"incur" has the meaning set forth in Section 4.12.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all Obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business), (v) all
Obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (vi) guarantees and other
contingent obligations in respect of Indebtedness of any other Person that is
referred to in clauses (i) through (v) above and clause (viii) below, (vii) all
Obligations of any other Person of the kinds referred to in clauses (i) through
(vi) above and clause (viii) below which are secured by any lien on any property
or asset of such Person, the amount of such Obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount of the
Obligation so secured, (viii) all Obligations under currency agreements and
interest swap agreements of such Person and (ix) all Disqualified Capital Stock
issued by such Person with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any. For purposes hereof, the amount of any
guarantee or other contingent obligation in respect of Indebtedness of (A) any
other Person (other than a Subsidiary of such Person) shall be deemed to be
equal to the maximum amount of such Indebtedness, unless the liability is
otherwise limited by the terms of such guarantee or other contingent obligation
regarding such Indebtedness, in which case, the amount of such guarantee or
other obligation shall be
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deemed to equal the maximum amount of such liability and (B) any Subsidiary of
such Person, at the option of such Person, shall be deemed to be either the
amount determined pursuant to clause (A) or the actual outstanding amount of
such Indebtedness. For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in LNR or any Subsidiary thereof and (ii) which, in
the judgment of the Board of Directors of LNR, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Initial Notes" means, collectively, (i) the 9 3/8% Senior
Subordinated Notes due 2008, Series A, of LNR issued on the Issue Date and (ii)
one or more series of 9 3/8% Senior Subordinated Notes due 2008 that are issued
under this Indenture subsequent to the Issue Date pursuant to Section 2.2, in
each case for so long as such securities constitute Restricted Securities.
"Initial Purchasers" means BT Alex. Xxxxx Incorporated and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, when used with respect to any Note, the amount of
all interest accruing on such Note, including any applicable defaulted interest
pursuant to Section 2.12 and any Additional Interest pursuant to the
Registration Rights Agreement.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person,
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whereby, directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying either a floating or a fixed rate
of interest on a stated notional amount in exchange for periodic payments made
by such other Person calculated by applying a fixed or a floating rate of
interest on a stated notional amount and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar agreements.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit by
LNR and its Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of LNR or such Subsidiary, as the case may be.
"Issue Date" means March 24, 1998.
"Land Partnership" means Lennar Land Partners, a Delaware general
partnership.
"Legal Defeasance" has the meaning set forth in Section 8.1.
"Legal Holiday" has the meaning provided in Section 11.7.
"Leisure Colony" means Leisure Colony Management Corp. Co., a
Florida corporation, and its successors including any Subsidiary of LNR to which
all or substantially all the assets of Leisure Colony Management Corp. Co. are
sold, leased or otherwise transferred.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"LNR" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor and also includes for the purposes of any provision contained herein
and required by the TIA any other obligor on the Notes.
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"Maturity Date" means March 15, 2008.
"Mortgage Subsidiary" means a Wholly Owned Subsidiary of LNR to be
formed after the Issue Date solely for the purpose of engaging in the mortgage
banking business and incidental activities directly related thereto.
"Non-Recourse Indebtedness" means any Indebtedness of LNR or any of
its Subsidiaries that is (i) (A) specifically advanced to finance the
acquisition of investment assets and (B) secured only by the assets to which
such Indebtedness relates without recourse to LNR or any of its Subsidiaries,
(ii) advanced to a Subsidiary of LNR or group of Subsidiaries of LNR formed for
the sole purpose of acquiring or holding investment assets (A) against which a
loan is obtained that is made without recourse to, and with no
cross-collateralization against the assets of, LNR or any other Subsidiary of
LNR, and (B) upon complete or partial liquidation of which the loan must be
correspondingly completely or partially repaid, as the case may be or (iii)
specifically advanced to finance the acquisition of real property and secured by
only the real property to which such Indebtedness relates without recourse to
LNR or any of its Subsidiaries.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means, collectively, the Initial Notes, the Private Exchange
Notes, if any, and the Unrestricted Notes, treated as a single class of
securities, as amended or supplemented from time to time in accordance with the
terms of this Indenture, that are issued pursuant to this Indenture.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Controller, or the
Secretary of such Person, or any other officer designated by the Board of
Directors serving in a similar capacity.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board of Directors, the Chief Executive Officer, the President or any
Vice President and the Chief Financial Officer, Controller or any Treasurer of
LNR and otherwise complying with the requirements of Section 11.4 and 11.5.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying
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with the requirements of Sections 11.4 and 11.5, as they relate to the giving of
an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.3.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Notes in an aggregate principal amount
not in excess of $200,000,000;
(ii) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate outstanding principal amount at any time not to exceed
$220,000,000;
(iii) Interest Swap Obligations of LNR covering Indebtedness of LNR
or any of its Subsidiaries; provided, however, that such Interest Swap
Obligations are entered into to protect LNR and its Subsidiaries from
fluctuations in interest rates on Indebtedness incurred in accordance with
this Indenture to the extent the notional principal amount of such
Interest Swap Obligation does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligation relates;
(iv) Indebtedness under Currency Agreements; provided, however, that
in the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of LNR and its
Subsidiaries outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(v) Indebtedness of a Subsidiary to LNR or to a Wholly Owned
Subsidiary of LNR for so long as such Indebtedness is held by LNR or a
Wholly Owned Subsidiary of LNR, in each case subject to no Liens held by
any Person other than LNR or a Wholly Owned Subsidiary of LNR; provided,
however, that if as of any date any Person other than LNR or a Wholly
Owned Subsidiary of LNR owns or holds any such Indebtedness or holds a
Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by the
issuer of such Indebtedness unless such Indebtedness is otherwise
permitted under this Indenture;
(vi) Indebtedness of LNR to a Wholly Owned Subsidiary of LNR for so
long as such Indebtedness is held by a Wholly Owned Subsidiary of LNR, in
each case subject to no Lien; provided, however, that (a) any Indebtedness
of LNR to any Wholly Owned Subsidiary of LNR is unsecured and
subordinated, pursuant to a written agreement, to LNR's obligations under
the Indenture and the Notes at least to the same extent that the Notes are
subordinated to Senior Indebtedness and (b) if
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as of any date any Person other than a Wholly Owned Subsidiary of LNR owns
or holds any such Indebtedness or a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by LNR unless such Indebtedness is otherwise
permitted under this Indenture;
(vii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within three Business Days of
incurrence;
(viii) Indebtedness of LNR or any of its Subsidiaries represented by
letters of credit for the account of LNR or such Subsidiaries, as the case
may be, in order to provide security for workers' compensation claims,
payment obligations in connection with self-insurance or similar
requirements in the ordinary course of business;
(ix) Existing Indebtedness outstanding on the Issue Date;
(x) Non-Recourse Indebtedness of the Mortgage Subsidiary;
(xi) additional Indebtedness in an aggregate principal amount not to
exceed $50.0 million at any time outstanding; and
(xii) Refinancing Indebtedness.
"Permitted Transferee" means, with respect to any Person, (i) that
Person's spouse, (ii) a parent or lineal descendant (including an adopted child)
of a parent of that Person, or the spouse of a lineal descendant of a parent of
that Person, (iii) a trustee, guardian or custodian for, or an executor,
administrator or other legal representative of the estate of, that Person, or a
trustee, guardian or custodian for a Permitted Transferee of that Person, (iv)
the trustee of a trust (including a voting trust) for the benefit of that Person
and (v) a corporation, partnership or other entity of which that Person and
Permitted Transferees of that Person are the beneficial owners of a majority in
voting power of the equity.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.1.
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"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"principal" of any Indebtedness (including the Notes) means the
principal amount of such Indebtedness determined in accordance with GAAP plus
(but without the duplication) the premium, if any, on such Indebtedness.
"Private Exchange Notes" shall have the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on
the Initial Notes in the form set forth in Exhibit A.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act.
"Public Equity Offering" means an underwritten public offering of
Qualified Capital Stock of LNR pursuant to an effective registration statement
filed with the Commission in accordance with the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A.
"Record Date" means the Record Dates specified in the Notes.
"Recourse Indebtedness" means all Indebtedness of LNR and its
Subsidiaries other than Non-Recourse Indebtedness.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Redemption Price means, when used with respect to any Note to be
redeemed, the price fixed for such redemption, including principal and premium,
if any, pursuant to this Indenture and the Notes.
"Reference Date" has the meaning set forth in Section 4.10.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness
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in exchange or replacement for, such security or Indebtedness in whole or in
part. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by LNR or any
Subsidiary of LNR of Indebtedness incurred in accordance with Section 4.12
(other than pursuant to clauses (ii), (iii), (iv), (v), (vi), (vii), (viii),
(x), (xi) or (xii) of the definition of Permitted Indebtedness), in each case
that does not (1) result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed Refinancing (plus
the amount of any premium required to be paid under the terms of the instrument
governing such Indebtedness and plus the amount of reasonable fees and expenses
incurred by LNR or such Subsidiary, as the case may be, in connection with such
Refinancing), except to the extent that any such increase in Indebtedness is
otherwise permitted by this Indenture or (2) create Indebtedness with (A) a
Weighted Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced or (B) a final maturity earlier
than the final maturity of the Indebtedness being Refinanced; provided, however,
that (x) if such Indebtedness being Refinanced is Indebtedness of LNR, then such
Refinancing Indebtedness shall be Indebtedness solely of LNR and (y) if such
Indebtedness being Refinanced is subordinate or junior to the Notes, then such
Refinancing Indebtedness shall be subordinate to the Notes at least to the same
extent and in the same manner as the Indebtedness being Refinanced.
"Registrar" has the meaning provided in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among LNR and the Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Indebtedness; provided,
however, that if, and for so long as, any Designated Senior Indebtedness lacks
such a representative, then the Representative for such Designated Senior
Indebtedness shall at all times constitute the holders of a majority in
outstanding principal amount of such Designated Senior Indebtedness in respect
of any Designated Senior Indebtedness.
"Restricted Payment" shall have the meaning set forth in Section
4.10.
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"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to request and conclusively rely on an opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on any Indebtedness of LNR, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without limiting the generality
of the foregoing, "Senior Indebtedness" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, (x) all monetary
obligations (including guarantees thereof) of every nature of LNR under the
Credit Agreement, including, without limitation, obligations to pay principal
and interest, reimbursement obligations under letters of credit, fees, expenses
and indemnities, (y) all Interest Swap Obligations (including guarantees
thereof) and (z) all obligations (including guarantees) under Currency
Agreements, in each case whether outstanding on the Issue Date or thereafter
incurred. Notwithstanding the foregoing, "Senior Indebtedness" shall not include
(i) any Indebtedness of LNR to a Subsidiary of LNR or any Affiliate of LNR or
any of such Affiliate's Subsidiaries, (ii) Indebtedness to, or guaranteed on
behalf of, any shareholder, director, officer or employee of LNR or of any
Subsidiary of LNR (including, without limitation, amounts owed for
compensation), (iii) Indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services, (iv) Indebtedness
represented by Disqualified Capital Stock, (v) any liability for federal, state,
local or other taxes owed or owing by LNR, (vi) that portion of any Indebtedness
incurred in violation of Section 4.12, (vii) Indebtedness which, when incurred
and without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx
Xxxxxx Code is without recourse to LNR and (viii) any Indebtedness which is, by
its express terms, subordinated in right of payment to any other Indebtedness of
LNR.
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"Senior Recourse Indebtedness" means all Senior Indebtedness other
than Senior Indebtedness that is Non-Recourse Indebtedness plus Subsidiary
Unsubordinated Indebtedness of each Subsidiary of LNR (but only to the extent
not in excess of the book value of the assets of the issuer thereof) other than
Subsidiary Unsubordinated Indebtedness of such Subsidiary that is Non-Recourse
Indebtedness.
"Subordinated Indebtedness" means all Indebtedness of LNR and its
Subsidiaries which expressly provides that such Indebtedness shall be
subordinated in right of payment to any other Indebtedness.
"Subsidiary" means, with respect to any Person, (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person, (ii) any
other Person (other than a partnership) of which at least a majority of the
voting interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person or (iii) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are such Person or one
or more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Unsubordinated Indebtedness" means all Indebtedness of a
Subsidiary of LNR other than Subordinated Indebtedness thereof.
"Surviving Entity" shall have the meaning set forth in Section 5.1.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in Section 9.3.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer this Indenture, or in the case of
a successor trustee, an officer assigned to the department, division or group
performing the corporation trust work of such successor and assigned to
administer this Indenture.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
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"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the Private Placement Legend, including, without limitation,
the Exchange Notes.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person (i) of which all the outstanding voting securities
normally entitled to vote in the election of directors are owned by such Person
or any Wholly Owned Subsidiary of such Person (other than directors qualifying
shares or an immaterial amount of shares required to be owned by other Persons
pursuant to applicable law) or (ii) all the outstanding partnership interests
are owned by such Person or any Wholly Owned Subsidiary of such Person.
SECTION 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means LNR or any other obligor
on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
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SECTION 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP of any date of determination;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(6) any reference to a statute, law or regulation means that
statute, law or regulation as amended and in effect from time to time and
includes any successor statute, law or regulation; provided, however, that
any reference to the Bankruptcy Law shall mean the Bankruptcy Law as
applicable to the relevant case.
ARTICLE II.
THE NOTES
SECTION 2.1. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit A hereto,
provided, that any Initial Notes issued in a public offering shall be
substantially in the form of Exhibit B hereto. The Exchange Notes and the
Trustee's certificate of authentication relating thereto shall be substantially
in the form of Exhibit B hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or depository rule or usage.
LNR and the Trustee shall approve the form of the Notes and any notation, legend
or endorsement on them. Each Note shall be dated the date of its issuance and
shall show the date of its authentication.
The terms and provisions contained in the Notes annexed hereto as
Exhibits A and B shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, LNR and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
Notes offered and sold in reliance on Rule 144A and Notes offered
and sold in reliance on Regulation S shall be
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issued initially in the form of one or more permanent global Notes in registered
form, substantially in the form set forth in Exhibit A (each, a "Global Note"),
deposited with the Trustee, as custodian for the Depository, duly executed by
LNR and authenticated by the Trustee as hereinafter provided and shall bear the
legend set forth in Exhibit C. The aggregate principal amount of the Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Notes issued in exchange for interests in a Global Note pursuant to
Section 2.16 may be issued and Notes offered and sold in reliance on any other
exemption from registration under the Securities Act other than as described in
the preceding paragraph shall be issued in the form of permanent certificated
Notes in registered form in substantially the form set forth in Exhibit A (the
"Physical Notes").
All Notes offered and sold in reliance on Regulation S shall remain
in the form of a Global Note until the consummation of the Exchange Offer
pursuant to the Registration Rights Agreement; provided, however, that all of
the time periods specified in the Registration Rights Agreement to be complied
with by LNR have been so complied with.
SECTION 2.2. Execution and Authentication; Aggregate Principal
Amount.
Two Officers, or an Officer and an Assistant Secretary of LNR shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for LNR by manual or facsimile
signature. Both such signatures may be facsimile.
If an Officer or Assistant Secretary whose signature is on a Note
was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue
in the aggregate principal amount not to exceed $350,000,000 in one or more
series, (ii) Private Exchange Notes from time to time for issue only in exchange
for a like principal amount of Initial Notes and (iii) Unrestricted Notes from
time to time only (A) in exchange for a like principal amount of Initial Notes
or (B) in an aggregate principal amount of not more than the excess of
$350,000,000 over the sum of the aggregate
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principal amount of (1) Initial Notes then outstanding, (2) Private Exchange
Notes then outstanding, (3) Unrestricted Notes issued in accordance with
(iii)(A) above, and (4) the aggregate principal amount of Notes, if any,
theretofore redeemed or paid, in each case upon a written order of LNR in the
form of an Officers' Certificate of LNR. Each such written order shall specify
the amount of Notes to be authenticated and the date on which the Notes are to
be authenticated, whether the Notes are to be Initial Notes, Private Exchange
Notes or Unrestricted Notes and whether the Notes are to be issued as Physical
Notes or Global Notes or such other information as the Trustee may reasonably
request. The aggregate principal amount of Notes outstanding at any time may not
exceed $350,000,000, except as provided in Sections 2.7 and 2.8.
In the event that LNR shall issue and the Trustee shall authenticate
any Notes issued under this Indenture subsequent to the Issue Date pursuant to
clauses (i) and (iii) of the first sentence of the immediately preceding
paragraph, LNR shall use its reasonable efforts to obtain the same "CUSIP"
number for such Notes as is printed on the Notes outstanding at such time and
provided written notice to the Trustee to such effect; provided, however, that
if any series of Notes issued under this Indenture subsequent to the Issue Date
is determined, pursuant to an Opinion of Counsel of LNR in a form reasonably
satisfactory to the Trustee to be a different class of security than the Notes
outstanding at such time for federal income tax or securities laws purposes, LNR
shall use its reasonable efforts to obtain a "CUSIP" number for such Notes that
is different than the "CUSIP" number printed on the Notes then outstanding and
cause such opinion to be delivered to the Trustee. Notwithstanding the foregoing
or any other provision herein to the contrary, all Notes issued under this
Indenture shall vote and consent together on all matters as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to LNR to authenticate Notes. Unless otherwise
provided in the appointment, an Authenticating Agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with LNR
or with any Affiliate of LNR.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3. Registrar and Paying Agent.
LNR shall maintain an office or agency (which shall be located in
the Borough of Manhattan in the City of New York, State of New York) where (a)
Notes may be presented or
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surrendered for registration of transfer or for exchange ("Registrar"), (b)
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon LNR in respect of the Notes and this Indenture
may be served. The Registrar shall keep a register of the Notes and of their
transfer and exchange. LNR may have one or more co-Registrars and one or more
additional paying agents reasonably acceptable to the Trustee. The term "Paying
Agent" includes any additional Paying Agent. LNR may act as its own Paying
Agent, except that for the purposes of payments on the Notes pursuant to Section
4.14, neither LNR nor any Affiliate of LNR may act as Paying Agent. If LNR
elects to act as its own paying agent, LNR will notify the Trustee of its
election and will hold for the benefit of the Holders all assets for the payment
of principal of premium, if any, or interest on, the Notes.
LNR shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which agreement shall incorporate the provisions
of the TIA and implement the provisions of this Indenture that relate to such
Agent. LNR shall notify the Trustee of the name and address of any such Agent.
If LNR shall fail to maintain a Registrar or Paying Agent the Trustee shall act
as such.
LNR initially appoints the Trustee as Registrar, Paying Agent and
agent for service of demands and notices in connection with the Notes, until
such time as the Trustee has resigned or a successor has been appointed. Any of
the Registrar, the Paying Agent or any other agent may resign upon 30 days'
notice to LNR.
SECTION 2.4. Paying Agent to Hold Assets in Trust.
LNR shall require each Paying Agent other than the Trustee to agree
in writing that such Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, premium, if any, or interest on, the Notes (whether such assets
have been distributed to it by LNR or any other obligor on the Notes), and LNR
and the Paying Agent shall notify the Trustee of any Default by LNR (or any
other obligor on the Notes) in making any such payment. LNR at any time may
require a Paying Agent to distribute all assets held by it to the Trustee and
account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered to the Paying Agent, the Paying Agent
shall have no further liability for such assets.
SECTION 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of
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the names and addresses of the Holders and shall otherwise comply with TIA ss.
312(a). If the Trustee is not the Registrar, LNR shall furnish or cause the
Registrar to furnish to the Trustee five (5) Business Days before each Record
Date and at such other times as the Trustee may request in writing a list as of
such date and in such form as the Trustee may reasonably require of the names
and addresses of the Holders, which list may be conclusively relied upon by the
Trustee, and LNR shall otherwise comply with TIA ss. 312(a).
SECTION 2.6. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar or a co-Registrar with a request to register the transfer of such
Notes or to exchange such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Notes presented or surrendered
for registration of transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to LNR, the Trustee and
the Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit registration of transfers and
exchanges, LNR shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but LNR may require payment of a sum
sufficient to cover any transfer tax, fee or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Section
2.10, 3.4, 4.14 or 9.5, in which event LNR shall be responsible for the payment
of such taxes or charges).
The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Note being redeemed in part.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book
entry system.
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SECTION 2.7. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken, LNR
shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or LNR, such Holder
must provide an indemnity bond or other indemnity of reasonable tenor,
sufficient in the reasonable judgment of LNR and the Trustee, to protect LNR,
the Trustee or any Agent from any loss which any of them may suffer if a Note is
replaced. Every replacement Note shall constitute an additional obligation of
LNR.
SECTION 2.8. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.9, a Note does not cease to be outstanding
because LNR or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.7 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a protected purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.7.
If, on a Redemption Date or the Maturity Date, the Paying Agent
holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of
the principal, premium, if any, and interest due on the Notes payable on that
date and is not prohibited from paying such money to the Holders thereof
pursuant to the terms of this Indenture, then on and after that date such Notes
shall be deemed not to be outstanding and interest on them shall cease to
accrue.
SECTION 2.9. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver, consent or notice, Notes owned
by LNR or an Affiliate of LNR shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee has been informed in writing by LNR
to be so owned shall be so considered. LNR shall notify the Trustee, in writing,
when either it or, to its knowledge, any of its Affiliates repurchases or
otherwise acquires Notes, of the aggregate principal amount of such Notes so
repurchased or otherwise acquired and such other information
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as the Trustee may reasonably request and the Trustee shall be entitled to rely
thereon.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, LNR may prepare and
the Trustee shall authenticate temporary Notes upon receipt of a written order
of LNR in the form of an Officers' Certificate. The Officers' Certificate shall
specify the amount of temporary Notes to be authenticated and the date on which
the temporary Notes are to be authenticated. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that LNR
consider appropriate for temporary Notes and so indicate in the Officers'
Certificate. Without unreasonable delay, LNR shall prepare and the Trustee shall
authenticate, upon receipt of a written order of LNR pursuant to Section 2.2,
definitive Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
LNR at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent, and no one else,
shall cancel and, at the written direction of LNR, shall dispose, in its
customary manner, of all Notes surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.7, LNR may not issue new Notes to replace
Notes that they have paid or delivered to the Trustee for cancellation. If LNR
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
SECTION 2.12. Defaulted Interest.
LNR will pay interest on overdue principal from time to time on
demand at the rate of interest then borne by the Notes. LNR shall, to the extent
lawful, pay interest on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the rate of interest
then borne by the Notes. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months, and, in the case of a partial month, the
actual number of days elapsed.
If LNR defaults in a payment of interest on the Notes, it shall pay
the defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date, which special record date shall be the fifteenth day next preceding
the date fixed by LNR for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. LNR shall notify the
Trustee in writing of the amount of
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defaulted interest proposed to be paid on each Note and the date of the proposed
payment (a "Default Interest Payment Date"), and at the same time LNR shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such defaulted interest as provided in
this Section; provided, however, that in no event shall LNR deposit monies
proposed to be paid in respect of defaulted interest later than 11:00 a.m. New
York City time of the proposed Default Interest Payment Date. At least 15 days
before the subsequent special record date, LNR shall mail (or cause to be
mailed) to each Holder, as of a recent date selected by LNR, with a copy to the
Trustee at least 20 days prior to such special record date, a notice that states
the subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.1(i) shall be paid to
Holders as of the regular record date for the Interest Payment Date for which
interest has not been paid. Notwithstanding the foregoing, LNR may make payment
of any defaulted interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange.
SECTION 2.13. CUSIP Number.
In issuing the Notes, LNR may use a "CUSIP" number, and, if so, the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided, however, that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes, and that reliance may be placed
only on the other identification numbers printed on the Notes. LNR shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. Deposit of Monies.
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date or Change of Control Payment Date, LNR
shall have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Maturity Date, Redemption Date or Change of Control Payment Date, as the case
may be, in a timely manner which permits the Paying Agent to remit payment to
the Holders on such Interest Payment Date, maturity Date, Redemption Date or
Change of Control Payment Date, as the case may be.
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SECTION 2.15. Restrictive Legends.
Each Global Note and Physical Note that constitutes a Restricted
Security shall bear the Private Placement Legend on the face thereof until after
the second anniversary of the later of the Issue Date and the last date on which
LNR or any Affiliate of LNR was the owner of such Note (or any predecessor
security) (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) (or such longer period of
time as may be required under the Securities Act or applicable state securities
laws in the opinion of counsel for LNR, unless otherwise agreed by LNR and the
Holder thereof).
Each Global Note shall also bear the legend as set forth in Exhibit
C.
SECTION 2.16. Book-Entry Provisions for Global Security.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear the legend as set forth
in Exhibit C.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under the
Global Notes, and the Depository may be treated by LNR, the Trustee and any
Agent of LNR or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
LNR, the Trustee or any Agent of LNR or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of a Global Note shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in a Global Note may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Note if (i) the Depository notifies LNR that it is
unwilling or unable to continue as Depository for the Global Notes and a
successor depositary is not appointed by LNR within 90 days of such notice or
(ii) an Event of Default has occurred and is continuing and the Registrar has
received a written request from the Depository to issue Physical Notes.
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b), the Registrar shall (if one or more Physical Notes are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and LNR shall execute and the
Trustee shall authenticate and deliver, one or more Physical Notes of like tenor
and amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b) of this Section 2.16, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and LNR
shall execute and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Note, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) or (c) of
this Section 2.16 shall, except as otherwise provided by paragraphs (a)(i)(x)
and (c) of Section 2.17, bear the Private Placement Legend.
(f) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date (provided, however, that neither LNR
nor any Affiliate of LNR has held any beneficial interest in such Note, or
portion thereof, or predecessor security at any time on or prior to the
second anniversary of the Issue Date) or (y) (1) in the case of a transfer
to an Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons), the proposed transferee has delivered to the Registrar
a certificate substantially in the form of Exhibit D hereto or (2) in the
case of a transfer to a Non-U.S. Person, the proposed transferor has
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delivered to the Registrar a certificate substantially in the form of
Exhibit E hereto; and
(ii) if the proposed transferee is an Agent Member and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the IAI Global Note or Regulation S Global
Note, as the case may be, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any, required by clause
(y) of paragraph (i) above, the Registrar shall register the transfer and
reflect on its books and records the date and an increase in the principal
amount of the IAI Global Note or Regulation S Global Note, as to case may
be, in an amount equal to the principal amount of Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, the Registrar shall
register the transfer and reflect on its books and records the date and
(A) a decrease in the principal amount of the Global Note from which such
interests are to be transferred in an amount equal to the principal amount
of the Notes to be transferred and (B) an increase in the principal amount
of the IAI Global Note or the Regulation S Global Note, as the case may
be, in an amount equal to the principal amount of the Notes to be
transferred.
(b) Transfers to QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Restricted
Security if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Note stating, or has otherwise
advised LNR and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Note stating, or has
otherwise advised LNR and the Registrar in writing, that it is purchasing
the Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding LNR as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is
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aware that the transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in a Global Note, upon receipt by the Registrar
of written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of such Global
Note in an amount equal to the principal amount of the Physical Notes to
be transferred, and the Trustee shall cancel the Physical Notes so
transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in the IAI Global Note or the Regulation S Global
Note, upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall register the transfer and reflect on its books and records
the date and (A) a decrease in the principal amount of the IAI Global Note
or the Regulation S Global Note, as the case may be, in an amount equal to
the principal amount of the Notes to be transferred and (B) an increase in
the principal amount of the Global Note in an amount equal to the
principal amount of the Notes to be transferred.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the requested transfer is after the second anniversary of the Issue
Date (provided, however, that neither LNR nor any Affiliate of LNR has held any
beneficial interest in such Note, or portion thereof, or any predecessor
security at any time prior to or on the second anniversary of the Issue Date),
or (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to LNR and the Trustee to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
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(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.16 or this Section 2.17.
LNR shall have the right to inspect and make copies of all such letters, notices
or other written communications at any reasonable time during the Registrar's
normal business hours upon the giving of reasonable written notice to the
Registrar.
(f) Transfer of Notes Held by Affiliates. Any certificate (i)
evidencing a Note that has been transferred to an Affiliate of LNR within two
years after the Issue Date, as evidenced by a notation on the Assignment Form
for such transfer or in the representation letter delivered in respect thereof
or (ii) evidencing a Note that has been acquired from an Affiliate of LNR (other
than by an Affiliate of LNR) in a transaction or a chain of transactions not
involving any public offering, shall, until two years after the last date on
which LNR or any Affiliate of LNR was an owner of such Note, in each case, bear
the Private Placement Legend, unless otherwise agreed by LNR (with written
notice thereof to the Trustee).
(g) Notice of Affiliate Purchases. In connection with the purchase
or sale of any Note or any beneficial interest therein by LNR or any Affiliate
thereof (other than a sale to the Initial Purchasers pursuant to the Purchase
Agreement), LNR shall file with the Trustee and Registrar a written notice
identifying the transaction as such for the purposes hereof.
SECTION 2.18. Liquidated Damages Under Registration Rights
Agreement.
Under certain circumstances, LNR shall be obligated to pay certain
liquidated damages to the Holders, all as set forth in Section 4 of the
Registration Rights Agreement. The terms thereof are hereby incorporated herein
by reference.
ARTICLE III.
REDEMPTION
SECTION 3.1. Notices to Trustee.
If LNR elects to redeem Notes pursuant to Paragraph 5 of the Notes,
it shall notify the Trustee and the Paying Agent in writing of the Redemption
Date and the principal amount of the Notes to be redeemed.
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LNR shall give each notice provided for in this Section 3.1 to the
Trustee at least 45 days before the Redemption Date (unless a shorter notice
period shall be satisfactory to the Trustee for its administrative convenience,
as evidenced in a writing signed on behalf of the Trustee), together with an
Officers' Certificate stating that such redemption shall comply with the
conditions contained herein and in the Notes. Any such notice may be canceled at
any time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
SECTION 3.2. Selection of Notes to Be Redeemed.
In the event that less than all of the Notes are to be redeemed at
any time, selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed or, if such Notes are not then listed on
a national securities exchange, by lot, on a pro rata basis or by such method as
the Trustee shall deem fair and appropriate; provided, however, that no Notes of
a principal amount of $1,000 or less shall be redeemed in part; provided
further, that if a partial redemption is made with the proceeds of a Public
Equity Offering, selection of the Notes or portions thereof for redemption shall
be made by the Trustee only on a pro rata basis or on as nearly a pro rata basis
as is practicable (subject to Depository procedures), unless such method is
otherwise prohibited.
SECTION 3.3. Optional Redemption.
The Notes will be redeemable, at LNR's option, in whole or in part
at any time, or from time to time, on or after March 15, 2003, upon not less
than 30 nor more than 60 days' notice to the Holders, at the following
Redemption Prices (expressed as percentages of the principal amount thereof) if
redeemed during the twelve-month period commencing on March 15 of the years set
forth below, plus, in each case, accrued and unpaid interest thereon, if any, to
the Redemption Date:
Year Percentage
---- ----------
2003.............................................104.688%
2004.............................................103.516%
2005.............................................102.344%
2006.............................................101.172%
2007 and thereafter..............................100.000%
Notwithstanding the foregoing, at any time, or from time to time, on
or prior to March 15, 2001, LNR may, at its option, redeem, with the net cash
proceeds of one or more Public Equity Offerings, up to 35% of the aggregate
principal amount of the Notes issued and sold by LNR at a redemption price equal
to 109.375% of the principal amount thereof, plus accrued interest
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thereon, if any, to the Redemption Date; provided that at least 65% of the
aggregate principal amount of the Notes issued and sold by LNR remain
outstanding immediately following such redemption. In order to effect the
foregoing redemption with the proceeds of any Public Equity Offering, LNR shall
make such redemption not more than 60 days after the consummation of any such
Public Equity Offering.
SECTION 3.4. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
LNR shall mail or cause to be mailed a notice of redemption by first-class mail
to each Holder of Notes to be redeemed at its registered address, with a copy to
the Trustee and any Paying Agent. At LNR's request, the Trustee shall give the
notice of redemption in LNR's name and at LNR's expense. LNR shall provide such
notices of redemption to the Trustee at least five days before the intended
mailing date.
Each notice of redemption shall identify (including the CUSIP
number) the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such redemption
is being made;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if any;
(6) that, unless LNR defaults in making the redemption payment,
interest on Notes or applicable portions thereof called for redemption will
cease to accrue on and after the Redemption Date, and the only remaining right
of the Holders of such Notes will be to receive payment of the Redemption Price
plus accrued interest as of the Redemption Date, if any, upon surrender to the
Paying Agent of the Notes redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, and upon surrender of such Note, a new Note or Notes in the aggregate
principal amount equal to the unredeemed portion thereof will be issued; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portions thereof) to be redeemed, as
well as the aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of
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Notes to be outstanding after such partial redemption.
LNR will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes.
SECTION 3.5. Effect of Notice Defect.
Once notice of redemption is mailed in accordance with Section 3.4,
such notice of redemption shall be irrevocable and Notes called for redemption
shall become due and payable on the Redemption Date and at the Redemption Price
plus accrued interest as of such date, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the Redemption
Price plus accrued interest thereon to the Redemption Date, but installments of
interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant record
dates referred to in the Notes. Interest shall cease to accrue on or after the
Redemption Date unless LNR defaults in payment of the Redemption Price.
SECTION 3.6. Deposit of Redemption Price.
On or before the Redemption Date and in accordance with Section
2.14, LNR shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price plus accrued interest, if any, of all Notes to be
redeemed on that date. The Paying Agent shall promptly return to LNR any U.S.
Legal Tender so deposited which is not required for that purpose, except with
respect to monies owed as obligations to the Trustee pursuant to Article Seven.
Unless LNR fails to comply with the preceding paragraph and defaults
in the payment of such Redemption Price plus accrued interest, if any, interest
on the Notes to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Notes are presented for payment.
SECTION 3.7. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Note or Notes equal in principal amount
to the unredeemed portion of the Note surrendered.
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ARTICLE IV.
COVENANTS
SECTION 4.1. Payment of Notes.
(a) LNR shall pay the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes and in this
Indenture.
(b) An installment of principal of or interest on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
LNR or any of its Affiliates) holds, prior to 11:00 a.m. New York City time on
that date, U.S. Legal Tender designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture or the Notes.
(c) Notwithstanding anything to the contrary contained in this
Indenture, LNR may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from payments hereunder.
SECTION 4.2. Maintenance of Office or Agency.
LNR shall maintain the office or agency required under Section 2.3.
LNR shall give prior written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time LNR shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.2.
SECTION 4.3. Corporate Existence.
Except as otherwise permitted by Article V, LNR shall do or cause to
be done, at its own cost and expense, all things necessary to preserve and keep
in full force and effect its corporate existence and the corporate existence of
each of its Subsidiaries in accordance with the respective organizational
documents of each such Subsidiary and the material rights (charter and
statutory) and franchises of LNR and each such Subsidiary; provided, however,
that LNR shall not be required to preserve, with respect to itself, any material
right or franchise and, with respect to any of its Subsidiaries, any such
existence, material right or franchise, if the Board of Directors of LNR shall
determine in good faith that the preservation thereof is no longer desirable in
the conduct of the business of LNR and its Subsidiaries, taken as a whole.
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SECTION 4.4. Payment of Taxes and Other Claims.
LNR shall pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all material lawful claims
for labor, materials and supplies that, if unpaid, might by law become a Lien
upon the property of LNR or any of its Subsidiaries; provided, however, that LNR
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate negotiations or proceedings
properly instituted and diligently conducted for which adequate reserves, to the
extent required under GAAP, have been taken.
SECTION 4.5. Maintenance of Properties and Insurance.
(a) LNR shall, and shall cause each of the Subsidiaries to, maintain
all properties used or useful in the conduct of its business in good working
order and condition (subject to ordinary wear and tear) and make all necessary
repairs, renewals, replacements, additions, betterments and improvements thereto
and actively conduct and carry on its business; provided, however, that nothing
in this Section 4.5 shall prevent LNR or any of the Subsidiaries of LNR from
discontinuing the operation and maintenance of any of its properties, if such
discontinuance is (i) in the ordinary course of business pursuant to customary
business terms or (ii) in the good faith judgment of the respective Boards of
Directors or other governing body of LNR or such Subsidiary, as the case may be,
desirable in the conduct of their respective businesses and is not
disadvantageous in any material respect to the Holders.
(b) LNR shall provide or cause to be provided, for itself and each
of the Subsidiaries of LNR, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the good faith judgment of LNR, are
adequate and appropriate for the conduct of the business of LNR and its
Subsidiaries in a prudent manner, with reputable insurers.
SECTION 4.6. Compliance Certificate; Notice of Default.
(a) LNR shall deliver to the Trustee, within 90 days after the end
of each of LNR's fiscal years, an Officers' Certificate (provided, however, that
one of the signatories to each such Officers' Certificate shall be LNR's
principal executive officer, principal financial officer or principal accounting
officer), as to such Officers' knowledge, of LNR's compliance with all
conditions and covenants under this Indenture
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(without regard to any period of grace or requirement of notice provided
hereunder) and in the event any Default exists, such Officers shall specify the
nature of such Default. Each such Officers' Certificate shall also notify the
Trustee of any change in LNR's fiscal year-end.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.8 shall be accompanied by a written
report of LNR's independent certified public accountants (who shall be a firm of
established national reputation) stating (A) that their audit examination has
included a review of the terms of this Indenture and the form of the Notes as
they relate to accounting matters, and (B) whether, in connection with their
audit examination, any Default or Event of Default has come to their attention
and if such a Default or Event of Default has come to their attention,
specifying the nature and period of existence thereof; provided, however, that,
without any restriction as to the scope of the audit examination, such
independent certified public accountants shall not be liable by reason of any
failure to obtain knowledge of any such Default or Event of Default that would
not be disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, LNR shall
deliver to the Trustee, at its address set forth in Section 11.2, by registered
or certified mail or by facsimile transmission followed by hard copy by
registered or certified mail an Officers' Certificate specifying such event,
notice or other action promptly upon LNR's becoming aware of such occurrence.
SECTION 4.7. Compliance with Laws.
LNR shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as could not singly or in the
aggregate reasonably be expected to have a material adverse effect on the
financial condition or results of operations of LNR and its Subsidiaries taken
as a whole.
SECTION 4.8. Commission Reports.
(a) LNR shall file with the Commission all information, documents
and reports to be filed with the
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Commission pursuant to Section 13 or 15(d) of the Exchange Act, whether or not
LNR is subject to such filing requirements so long as the Commission will accept
such filings. LNR (at its own expense) shall deliver to the Trustee within 15
days after it files them with the Commission, copies of the quarterly and annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which LNR files with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Upon qualification of this Indenture under the TIA, LNR
shall also comply with the provisions of TIA ss. 314(a).
(b) At LNR's expense, regardless of whether LNR is required to
furnish such reports to its stockholders pursuant to the Exchange Act, LNR shall
cause an annual report and each quarterly or other financial report to be
delivered to the Trustee and the Trustee will mail them to the Holders at their
addresses appearing in the registration books of the Registrar.
(c) LNR shall, upon request, provide to any Holder or any
prospective transferee of any such Holder any information concerning LNR
(including financial statements) necessary in order to permit such Holder to
sell or transfer Notes in compliance with Rule 144A.
SECTION 4.9. Waiver of Stay, Extension or Usury Laws.
LNR covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive LNR from paying all or any portion of
the Obligations on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
LNR hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 4.10. Limitation on Restricted Payments.
LNR shall not, and shall not cause or permit any of its Subsidiaries
to, directly or indirectly:
(a) declare or pay any dividend or make any distribution
(other than dividends or distributions made to LNR or any Subsidiary of
LNR and, if such Subsidiary is not a Wholly Owned Subsidiary, to such
Subsidiary's other stockholders or interest holders on a pro rata basis,
and other than any dividend or distribution payable solely in
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Qualified Capital Stock of LNR) on or in respect of shares of LNR's
Capital Stock to holders of such Capital Stock;
(b) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of LNR or any warrants, rights or options to purchase or
acquire shares of any class of such Capital Stock (other than the exchange
of such Capital Stock or any warrants, rights or options to acquire shares
of any class of Capital Stock of LNR for Qualified Capital Stock of LNR);
or
(c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of LNR or a Subsidiary that is subordinate or
junior in right of payment to the Notes or any guarantee thereof
(each of the foregoing actions set forth in clauses (a), (b) and (c) being
referred to as a "Restricted Payment"), if at the time of such Restricted
Payment or immediately after giving effect thereto, (i) a Default or an Event of
Default shall have occurred and be continuing or (ii) LNR is not able to incur
at least $1.00 of additional Indebtedness (other than additional Permitted
Indebtedness) in compliance with Section 4.12, or (iii) the aggregate amount of
all Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as determined
reasonably and in good faith by the Board of Directors of LNR) shall exceed the
sum of:
(A) 50% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100% of
such loss) of LNR earned during the period beginning on the first
day of the fiscal quarter including the Issue Date and ending on the
last day of the most recent fiscal quarter ending at least 30 days
prior to the date the Restricted Payment occurs (the "Reference
Date") (treating such period as a single accounting period); plus
(B) 100% of the aggregate net cash proceeds received by LNR
from any Person (other than a Subsidiary of LNR) from the issuance
and sale subsequent to the Issue Date and on or prior to the
Reference Date of Qualified Capital Stock of LNR, including treasury
stock; plus
(C) without duplication of any amounts included in clause (B)
above, 100% of the aggregate net cash proceeds of any equity
contribution received by LNR from a holder of LNR's Capital Stock
subsequent to the
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Issue Date and on or prior to the Reference Date (excluding, in the
case of clauses (B) and (C), any net cash proceeds from a Public
Equity Offering to the extent used to redeem the Notes); plus
(D) $75,000,000.
Notwithstanding the foregoing, the provisions set forth above in
Section 4.10 shall not prohibit:
(1) the payment of any dividend or the consummation of any
irrevocable redemption within 60 days after the date of declaration
of such dividend or the giving of such irrevocable redemption notice
if the dividend or redemption would have been permitted on the date
of declaration or giving of irrevocable redemption notice;
(2) if no Default or Event of Default shall have occurred and
be continuing, the acquisition of any shares of Capital Stock of
LNR, through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of LNR) of
shares of Qualified Capital Stock of LNR;
(3) if no Default or Event of Default shall have occurred and
be continuing, the acquisition of any Indebtedness of LNR that is
subordinate or junior in right of payment to the Notes either (i)
solely in exchange for shares of Qualified Capital Stock of LNR, or
(ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of LNR) of (A)
shares of Qualified Capital Stock of LNR or (B) Refinancing
Indebtedness; and
(4) if no Default or Event of Default shall have occurred and
be continuing, the repurchase of shares of, or options to purchase
shares of, Common Stock of LNR from employees, former employees,
directors or former directors of LNR pursuant to the terms of the
agreements or plans approved by the Board of Directors of LNR under
which such individuals purchased or sold, or were granted the option
to purchase or sell shares of Common Stock), provided, however, that
the aggregate amount of such repurchases or Restricted Payments
shall not exceed $250,000 any calendar year.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (iii) of this Section
4.10, amounts expended pursuant to clauses (1), (2) and (3)(ii)(A) shall be
included in such calculation.
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Not later than three Business Days before making any Restricted
Payment, LNR shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment complies with this Indenture and setting forth in
reasonable detail the basis upon which the required calculations were computed.
SECTION 4.11. Limitation on Transactions with Affiliates.
(a) LNR shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under paragraph
(b) of this Section 4.11 and (y) Affiliate Transactions on terms that are no
less favorable to LNR or such Subsidiary than those that might reasonably have
been obtained or are obtainable in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate of LNR or such
Subsidiary. All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a fair market value in excess of $5.0 million
shall be approved by the Board of Directors of LNR or such Subsidiary, as the
case may be, such approval to be evidenced by a Board Resolution stating that
such Board of Directors (including a majority of the directors who do not have
any interest in the Affiliate Transaction) has determined that such transaction
complies with the foregoing provisions. In addition, if LNR or any Subsidiary of
LNR enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a common plan) involving aggregate payments or other
property with a fair market value in excess of $7.5 million, LNR or such
Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain
a favorable opinion as to the fairness of such transaction or series of related
transactions to LNR or the relevant Subsidiary, as the case may be, from a
financial point of view, from an Independent Financial Advisor and file the same
with the Trustee.
(b) The restrictions set forth in paragraph (a) of this Section 4.11
shall not apply to (i) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees, consultants or agents of
LNR or any Subsidiary of LNR as determined in good faith by LNR's Board of
Directors or senior management; (ii) transactions between or among LNR and any
of its Wholly Owned Subsidiaries or between or among such Wholly Owned
Subsidiaries provided such transactions are not otherwise prohibited under this
Indenture; (iii) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including pursuant to
any amendment thereto) or in any replacement agreement thereto so long as any
such amendment or replacement
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agreement is not more disadvantageous to the Holders in any material respect
than the original agreement as in effect on the Issue Date; (iv) Restricted
Payments permitted by this Indenture; and (v) transactions between or among LNR
or any Subsidiaries of LNR and the Land Partnership, provided such transactions
are permitted by and are effected in accordance with the terms of the
Partnership Agreement of the Land Partnership and the By-laws of LNR, in each
case, as in effect on the Issue Date.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
LNR shall not, and shall not cause or permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume, guarantee, acquire, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for payment of (collectively, "incur"), any Indebtedness (including,
without limitation, Acquired Indebtedness) other than Permitted Indebtedness.
Notwithstanding the foregoing, if no Default or Event of Default shall have
occurred and be continuing at the time of or as a consequence of the incurrence
of any such Indebtedness, LNR and its Subsidiaries may incur Indebtedness
(including, without limitation, Acquired Indebtedness) if on the date of the
incurrence of such Indebtedness, after giving effect to the incurrence thereof:
(i) the Consolidated Fixed Charge Coverage Ratio of LNR is greater
than 1.5 to 1.0;
(ii) the ratio of the aggregate amount of Recourse Indebtedness
outstanding on a consolidated basis to the Consolidated Net Worth of LNR
is less than 5.0 to 1.0;
(iii) the ratio of the aggregate amount of Senior Recourse
Indebtedness outstanding on a consolidated basis to the sum of (A) the
Consolidated Net Worth of LNR and (B) the aggregate amount of the
Subordinated Indebtedness outstanding on a consolidated basis is less than
3.5 to 1.0; and
(iv) the ratio of the aggregate amount of Subordinated Indebtedness
outstanding on a consolidated basis to the Consolidated Net Worth of LNR
is less than 1.0 to 1.0.
No Indebtedness incurred pursuant to the second sentence of this Section 4.12
shall be included in calculating any limitation set forth in the definition of
Permitted Indebtedness. Neither the accrual of interest nor the accretion of
original issue discount shall be deemed an incurrence of Indebtedness. Prior to
any incurrence of Indebtedness pursuant to the second sentence of this Section
4.12 (other than an advance under a committed facility), LNR shall deliver to
the Trustee an Officers' Certificate setting forth the calculations by which
such incurrence was determined to be permitted. If, during any month, LNR incurs
Indebtedness
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pursuant to the second sentence of this Section 4.12 through advances under a
committed facility, LNR shall deliver to the Trustee on the last day of such
month an Officers' Certificate setting forth the calculations by which each such
incurrence was determined to be permitted.
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
LNR shall not, and shall not cause or permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or permit to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
of LNR to (a) pay dividends or make any other distributions on or in respect of
its Capital Stock; (b) make loans or advances or pay any Indebtedness or other
obligation owed to LNR or any other Subsidiary of LNR; or (c) transfer any of
its property or assets to LNR or any other Subsidiary of LNR, except for such
encumbrances or restrictions existing under or by reason of:
(1) applicable law;
(2) this Indenture;
(3) the Credit Agreement;
(4) nonassignment provisions of any contract or any lease
governing a leasehold interest of any Subsidiary of LNR;
(5) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;
(6) agreements existing on the Issue Date to the extent and in
the manner such agreements are in effect on the Issue Date;
(7) restrictions on the transfer of assets subject to any Lien
permitted under this Indenture to secure Non-Recourse Indebtedness imposed
by the holder of such Lien;
(8) restrictions imposed by any agreement to sell assets
permitted under this Indenture to any Person pending the closing of such
sale;
(9) any agreement or instrument governing Capital Stock of any
Person that is acquired; or
(10) an agreement governing Indebtedness incurred to Refinance
the Indebtedness issued, assumed or incurred
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pursuant to an agreement referred to in clause (2), (3), (5) or (6) above,
provided, however, that the provisions relating to such encumbrance or
restriction contained in any such Indebtedness incurred to Refinance the
Indebtedness are not less favorable to LNR in any material respect as
determined by the Board of Directors of LNR in their reasonable and good
faith judgment than the provisions relating to such encumbrance or
restriction contained in agreements referred to in such clause (2), (3),
(5) or (6), respectively.
SECTION 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require that LNR purchase all or a portion of such Holder's
Notes pursuant to the offer described below (the "Change of Control Offer"), at
a purchase price equal to 101% of the principal amount thereof plus accrued and
unpaid interest to the date of purchase.
(b) Within 30 days following the date upon which a Change of Control
occurs, LNR shall send, by first class mail, a notice to each Holder at such
Holder's last registered address, with a copy to the Trustee provided at least 5
days prior to such mailing, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 4.14, that all Notes tendered and not withdrawn will be accepted
for payment and that the Change of Control Offer shall remain open for a
period of 20 Business Days or such longer period as may be required by
law;
(ii) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless LNR defaults in making payment therefor, any Note
accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Payment Date;
(v) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
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(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing its election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided, however, that each Note purchased and
each new Note issued shall be in an original principal amount of $1,000 or
integral multiples thereof; and
(viii) the circumstances and relevant facts regarding such Change of
Control.
(c) In connection with any Change of Control, LNR shall within 30
days following any Change of Control, (i) obtain the consents under the Credit
Agreement and all other Senior Indebtedness required to permit the repurchase of
the Notes pursuant to a Change of Control Offer or (ii) repay in full all
Indebtedness, and terminate all commitments, under the Credit Agreement and all
other Senior Indebtedness the terms of which would prohibit the purchase of the
Notes pursuant to a Change of Control Offer.
(d) On or before the Change of Control Payment Date, LNR shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent in accordance with Section
2.14 U.S. Legal Tender sufficient to pay the purchase price plus accrued
interest, if any, of all Notes so tendered and (iii) deliver to the Trustee
Notes so accepted together with an Officers' Certificate stating the Notes or
portions thereof being purchased by LNR. Upon receipt by the Paying Agent of the
monies specified in clause (ii) of the next preceding sentence and a copy of the
Officers' Certificate specified in clause (iii) of such sentence, the Paying
Agent shall promptly mail to the Holders of Notes so accepted payment in an
amount equal to the purchase price plus accrued interest, if any, and the
Trustee shall promptly authenticate and mail to such Holders new Notes equal in
principal amount to any unpurchased portion of the Notes surrendered. For
purposes of this Section 4.14, the Trustee shall act as the Paying Agent.
(e) Neither the Board of Directors of LNR nor the Trustee may waive
the provisions of this Section 4.14 relating to LNR's obligation to repurchase
Notes upon a Change of Control.
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(f) LNR will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.14, LNR shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under the provisions of this Section 4.14 by virtue thereof.
(g) Notwithstanding anything herein to the contrary, LNR shall not
be required to make a Change of Control Offer upon a Change of Control if a
third party makes the Change of Control Offer in the manner, at the time and
otherwise in compliance with the requirements of this Section 4.14 applicable to
a Change of Control Offer made by LNR and purchases all Notes validly tendered
and not withdrawn under such Change of Control Offer.
SECTION 4.15. Limitation on Preferred Stock of Subsidiaries.
LNR shall not permit any of its Subsidiaries to issue any Preferred
Stock (other than to LNR or to a Wholly Owned Subsidiary of LNR) or permit any
Person (other than LNR or a Wholly Owned Subsidiary of LNR) to own any Preferred
Stock of any Subsidiary of LNR.
SECTION 4.16. Limitation on Liens and Guarantees.
LNR shall not, and shall not cause or permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or permit or suffer to exist
any Liens securing Indebtedness of LNR that is expressly subordinate or junior
in right of payment to the Notes or is pari passu in right of payment to Notes
against or upon any property or assets of LNR or any of its Subsidiaries
(whether owned on the Issue Date or acquired after the Issue Date), or any
proceeds therefrom, or assign or otherwise convey any right to receive income or
profits therefrom, or grant any guarantees of any such Indebtedness, unless (i)
in the case of Liens securing Indebtedness of LNR that is expressly subordinate
or junior in right of payment to the Notes, the Notes are secured by a Lien on
such property, assets or proceeds that is senior in priority to such Liens, (ii)
in case of guarantees of Indebtedness of LNR that is expressly subordinate or
junior in right of payment to the Notes, the Notes are subject to a guarantee
from the same guarantor or guarantors that is senior in priority to such
guarantees and (iii) in all other cases, the Notes are equally and ratably
secured.
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SECTION 4.17. Conduct of Business.
LNR shall, and shall cause its Subsidiaries to, engage primarily in
the businesses of acquiring, developing, selling, owning, managing, operating,
leasing, credit enhancing and insuring commercial and multi-family residential
real estate, real estate related lending, acquiring, owning, servicing and
collecting real estate related loans and other underperforming debt securities,
investing in real estate related securities and securities of companies engaged
primarily in real estate related activities, and other activities related to or
arising out of any of those activities.
SECTION 4.18. Prohibition on Incurrence of Senior Subordinated Debt.
LNR shall not incur or suffer to exist Indebtedness that by its
terms (or by the terms of any agreement governing such Indebtedness) is senior
in right of payment to the Notes and expressly subordinate in right of payment
to any other Indebtedness of LNR.
ARTICLE V.
SUCCESSOR CORPORATION
SECTION 5.1. Merger, Consolidation and Sale of Assets.
(a) LNR shall not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
LNR's assets (determined on a consolidated basis for LNR and its Subsidiaries)
unless: (i) either (1) LNR shall be the surviving or continuing corporation or
(2) the Person (if other than LNR) formed by such consolidation or into which
LNR is merged or the Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of LNR and its
Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall be
a corporation organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia and (y) shall expressly assume,
by supplemental indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of, premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, this Indenture and the Registration
Rights Agreement on the part of LNR to be performed or observed, as the case may
be; (ii) immediately after giving effect to such transaction and the assumption
contemplated by clause (i)(2)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction), LNR or such Surviving
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Entity, as the case may be, (1) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of LNR immediately prior to such
transaction and (2) shall be able to incur at least $1.00 of additional
Indebtedness (other than additional Permitted Indebtedness) pursuant to Section
4.12; (iii) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y) above
(including, without limitation, giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred and any Lien granted in
connection with or in respect of the transaction), no Default or Event of
Default shall have occurred or be continuing; and (iv) LNR or the Surviving
Entity, as the case may be, shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries of LNR, the Capital Stock of which constitutes all or
substantially all of the properties and assets of LNR shall be deemed to be the
transfer of all or substantially all of the properties and assets of LNR.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of LNR in accordance with Section 5.1, the
successor Person formed by such consolidation or into which LNR is merged or to
which such conveyance, lease or transfer is made shall (upon the required
assumption described in Section 5.1) succeed to, and be substituted for, and may
exercise every right and power of, LNR under this Indenture and the Notes with
the same effect as if such successor had been named as LNR herein and thereafter
(except in the case of a lease) the predecessor corporation will be relieved of
all further obligations and covenants under this Indenture and the Notes.
ARTICLE VI.
REMEDIES
SECTION 6.1. Events of Default.
An "Event of Default" means any of the following events:
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(i) the failure to pay interest (including Additional Interest, if
any) on any Notes when the same becomes due and payable and the default
continues for a period of 30 days, whether or not such failure shall be
due to compliance with Article X of this Indenture or agreements with
respect to any other Indebtedness or any other reason;
(ii) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon acceleration, upon
redemption or otherwise (including the failure to make a Change of Control
Offer or make a payment to purchase Notes tendered pursuant to a Change of
Control Offer), whether or not such failure shall be due to compliance
with Article X of this Indenture or agreements with respect to any other
Indebtedness or any other reason;
(iii) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default continues
for a period of 30 days after LNR receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or
the Holders of at least 25% of the outstanding principal amount of the
Notes (except in the case of a default with respect to Section 5.1, which
will constitute an Event of Default with such notice requirement but
without such passage of time requirement);
(iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Recourse Indebtedness of LNR or any Subsidiary of LNR, or the
acceleration of the final stated maturity of any such Recourse
Indebtedness if the aggregate principal amount of such Recourse
Indebtedness, together with the principal amount of any other such
Recourse Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated, aggregates $5.0 million or more at
any time;
(v) one or more judgments in an aggregate amount in excess of $5.0
million shall have been rendered against LNR or any of its Subsidiaries
and remain undischarged, unpaid or unstayed for a period of 60 days after
such judgment or judgments become final and nonappealable.
(vi) LNR or any of its Subsidiaries pursuant to or under or within
the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
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(d) makes a general assignment for the benefit of its creditors;
or
(e) shall generally not pay its debts when such debts become due
or shall admit in writing its inability to pay its debts
generally; or
(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against LNR or any Subsidiary of LNR in an
involuntary case or proceeding,
(b) appoints a Custodian of LNR or any Subsidiary of LNR for all
or substantially all of its Properties, or
(c) orders the liquidation of LNR or any Subsidiary of LNR.
and in each case the order or decree remains unstayed and in effect for 60
consecutive days.
The Events of Default described in clauses (iv), (v), (vi) and (vii)
above with respect to a Subsidiary shall not apply if such Person was not a
Subsidiary at the time such event or condition occurred unless, in the case of
clause (iv) or (v) above, LNR or another Subsidiary thereof assumes or otherwise
becomes liable for the liability referred to therein or the liabilities
generally of such Person.
SECTION 6.2. Acceleration.
(a) If an Event of Default (other than an Event of Default specified
in clause (vi) or (vii) of Section 6.1) shall occur and be continuing, the
Trustee or the Holders of at least 25% in principal amount of outstanding Notes
may declare the principal of and accrued interest on all the Notes to be due and
payable by notice in writing to LNR and, if such notice is given by Holders, the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Agreement, shall become immediately due and payable upon the first to
occur of an acceleration under the Credit Agreement or 5 Business Days after
receipt by LNR and the Representative under the Credit Agreement of such
Acceleration Notice but only if such Event of Default is then continuing. If an
Event of Default specified in clause (vi) or (vii) of Section 6.1 occurs and is
continuing with respect to LNR, then all unpaid Obligations on all of the
outstanding Notes shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
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(b) At any time after a declaration of acceleration with respect to
the Notes as described in the preceding paragraph, the Holders of a majority in
aggregate principal amount of the Notes may rescind and cancel such declaration
and its consequences (i) if the rescission would not conflict with any judgment
or decree, (ii) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
such acceleration, (iii) if interest on overdue installments of interest (to the
extent the payment of such interest is lawful) and on overdue principal, which
has become due otherwise than by such declaration of acceleration, has been
paid, (iv) if LNR has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (iv) of Section 6.1, the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of the principal of, premium, if any, or interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes
may be enforced by the Trustee even if it does not possess any of the Notes or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.4. Waiver of Past Defaults.
Prior to the declaration of acceleration of the Notes, the Holders
of not less than a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may, on behalf of the Holders of all the
Notes, waive any existing Default or Event of Default and its consequences under
this Indenture, except a Default or Event of Default specified in clause (i) or
(ii) of Section 6.1 or in respect of any provision hereof which cannot be
modified or amended without the consent of the Holder so affected pursuant to
Section 9.2. When a Default or Event of Default is so waived, it shall be deemed
cured and shall cease to exist. This Section 6.4 shall be in lieu of ss.
316(a)(1)(B) of the TIA and such ss. 316(a)(1)(B) of the TIA is
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hereby expressly excluded from this Indenture and the Notes, as permitted by the
TIA.
SECTION 6.5. Control by Majority.
Subject to Section 2.9, the Holders of the Notes may not enforce
this Indenture or the Notes except as provided in this Article VI and under the
TIA. The Holders of not less than a majority in aggregate principal amount of
the outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided, however that
the Trustee may refuse to follow any direction (a) that conflicts with any rule
of law or this Indenture, (b) that the Trustee determines may be unduly
prejudicial to the rights of another Holder, or (c) that may expose the Trustee
to personal liability for which reasonable indemnity provided to the Trustee
against such liability shall be inadequate; provided further, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction or this Indenture. This Section 6.5 shall be in lieu of ss.
316(a)(1)(A) of the TIA, and such ss. 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
SECTION 6.6. Limitation on Suits.
No Holder of any Notes shall have any right to institute any
proceeding with respect to this Indenture or the Notes or any remedy hereunder,
unless the Holders of at least 25% in aggregate principal amount of the
outstanding Notes have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceeding as Trustee under the Notes and this
Indenture, the Trustee has failed to institute such proceeding within 25 days
after receipt of such notice, request and offer of indemnity and the Trustee,
within such 25-day period, has not received directions inconsistent with such
written request by Holders of not less than a majority in aggregate principal
amount of the outstanding Notes.
The foregoing limitations shall not apply to a suit instituted by a
Holder of a Note for the enforcement of the payment of the principal of,
premium, if any, or interest on, such Note on or after the respective due dates
expressed or provided for in such Note.
A Holder may not use this Indenture to prejudice the rights of any
other Holders or to obtain priority or preference over such other Holders.
SECTION 6.7. Right of Holders To Receive Payment.
Notwithstanding any other provision in this Indenture, the right of
any Holder of a Note to receive payment of the
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principal of, premium, if any, and interest on such Note, on or after the
respective due dates expressed or provided for in such Note, or to bring suit
for the enforcement of any such payment on or after the respective due dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
SECTION 6.8. Collection Suit by Trustee.
If an Event of Default specified in clause (i) or (ii) of Section
6.1 occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against LNR, or any other obligor on the
Notes for the whole amount of the principal of, premium, if any, and accrued
interest remaining unpaid, together with interest on overdue principal and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum provided for by the
Notes and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents, counsel, accountants and
experts) and the Holders allowed in any judicial proceedings relative to LNR or
Subsidiaries (or any other obligor upon the Notes), their creditors or their
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.7. LNR's payment
obligations under this Section 6.9 shall be secured in accordance with the
provisions of Section 7.7. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI it
shall pay out such money, subject to the provisions of Article X, in the
following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for interest accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for interest;
Third: to Holders for the principal amounts (including any premium) owing
under the Notes, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for the principal (including any
premium); and
Fourth: the balance, if any, to LNR.
The Trustee, upon prior written notice to LNR, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may in its discretion require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.7, or a suit by a Holder or Holders of more than
10% in aggregate principal amount of the outstanding Notes.
SECTION 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Note and such proceeding
has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case LNR, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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ARTICLE VII.
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and shall use the same degree of care and skill in its exercise
thereof as a prudent man or woman would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no duties, covenants or obligations of the
Trustee shall be implied in this Indenture.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.2, 6.4 or 6.5.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability, in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it
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shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1 and
Section 7.2.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with LNR.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
(g) The Trustee may refuse to perform any duty or exercise any right
or power hereunder unless (i) it is provided adequate funds to enable it to do
so and (ii) it receives indemnity reasonably satisfactory to it against any
loss, liability, fee or expense.
SECTION 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not and
shall not be required to investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate or an
Opinion of Counsel, or both, which shall conform to Sections 11.4 and 11.5. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, upon reasonable notice to LNR, to examine
the books, records, and
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premises of LNR, personally or by agent or attorney and to consult with the
officers and representatives of LNR, including LNR's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred by it in compliance with such request, order
or direction.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) Delivery of reports, information and documents to the Trustee
under Section 4.8 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
LNR's compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with LNR, any of its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, and it shall not
be accountable for LNR's use of the proceeds from the Notes, and it shall not be
responsible for any statement of LNR in this Indenture or any document entered
into or issued in connection with the issuance and sale of the Notes or any
statement in the Notes other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to a Trust Officer, the Trustee shall mail to each Holder notice of
the uncured Default or Event of Default within 90 days after obtaining knowledge
thereof. Except in the case of a Default or an Event of Default in payment of
principal of, or premium, if any, or interest on, any Note,
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including an accelerated payment, a Default in payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or a Default in compliance
with Article V hereof, the Trustee may withhold the notice if and so long as its
Board of Directors, the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Holders. The foregoing sentence
of this Section 7.5 shall be in lieu of the proviso to ss. 315(b) of the TIA and
such proviso to ss. 315(b) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
SECTION 7.6. Reports by Trustee to Holders.
Within 60 days after December 31 of each year beginning with 1998,
the Trustee shall, to the extent that any of the events described in TIA ss.
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder a brief report dated as of such date that complies with TIA ss.
313(a). The Trustee also shall comply with TIA xx.xx. 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders shall be
mailed to LNR and filed with the Commission and each stock exchange, if any, on
which the Notes are listed.
LNR shall promptly notify the Trustee if the Notes become listed on
any stock exchange and the Trustee shall comply with TIA ss. 313(d).
SECTION 7.7. Compensation and Indemnity.
LNR shall pay to the Trustee from time to time such compensation for
its services as has been agreed to in writing signed by LNR and the Trustee. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. LNR shall reimburse the Trustee upon request for
all reasonable out-of-pocket disbursements, advances or expenses incurred or
made by it in connection with the performance of its duties under this
Indenture. Such expenses shall include the reasonable fees and expenses of the
Trustee's agents, counsel, accountants and experts.
LNR shall indemnify each of the Trustee (or any predecessor Trustee)
and its agents, employees, stockholders, Affiliates and directors and officers
for, and hold them each harmless against, any and all loss, liability, damage,
claim or expense (including reasonable fees and expenses of counsel), including
taxes (other than taxes based on the income of the Trustee) incurred by any of
them except for such actions to the extent caused by any negligence, bad faith
or willful misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable costs and
expenses of defending themselves against any claim or liability in connection
with the exercise or performance
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of any of their rights, powers or duties hereunder. The Trustee shall notify LNR
promptly of any claim asserted against the Trustee for which it may seek
indemnity, provided, however, that failure to so notify LNR shall not release
LNR of its obligations hereunder unless, and then only to the extent, such
failure results in the forfeiture by LNR of substantial rights and defenses. At
the Trustee's sole discretion, LNR shall defend the claim and the Trustee shall
cooperate and may participate in the defense; provided, however, that any
settlement of a claim shall be approved in writing by the Trustee if such
settlement would result in an admission of liability by the Trustee or if such
settlement would not be accompanied by a full release of the Trustee for all
liability arising out of the events giving rise to such claim. Alternatively,
the Trustee may at its option have separate counsel of its own choosing and LNR
shall pay the reasonable fees and expenses of such counsel.
To secure LNR's payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Notes on all assets or money held or collected by
the Trustee, in its capacity as Trustee, except assets or money held in trust to
pay principal of or premium, if any, or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(vi) or (vii) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.7 shall survive the termination of
this Indenture.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign at any time by so notifying LNR in writing at
least 30 days in advance of such resignation; provided, however, that no such
resignation shall be effective until a successor Trustee has accepted its
appointment pursuant to this Section 7.8. The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee and appoint a successor
Trustee with LNR's consent, by so notifying LNR and the Trustee. LNR may remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, LNR shall notify each Holder of such event and
shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in aggregate principal amount of
the outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by LNR.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to LNR. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail notice of such successor Trustee's
appointment to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, LNR or the Holders
of at least 10% in aggregate principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding any resignation or replacement of the Trustee
pursuant to this Section 7.8, LNR's obligations under Section 7.7 shall continue
for the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however, that
such corporation shall be otherwise qualified and eligible under this Article
VII.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA xx.xx. 310(a)(1), (2) and (5). The Trustee (or, in the case
of a Trustee that is a corporation included in a bank holding company system,
the related bank holding company) shall have a combined capital and surplus of
at least $100 million as set forth in its most recent published
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annual report of condition, and have a Corporate Trust Office in the City of New
York. In addition, if the Trustee is a corporation included in a bank holding
company system, the Trustee, independently of such bank holding company, shall
meet the capital requirements of TIA ss. 310(a)(2). The Trustee shall comply
with TIA ss. 310(b); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
LNR are outstanding, if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met. The provisions of TIA ss. 310 shall apply to LNR, as obligor
of the Notes.
SECTION 7.11. Preferential Collection of Claims Against LNR.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein. The
provisions of TIA ss. 311 shall apply to LNR, as obligor of the Notes.
ARTICLE VIII.
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Termination of Company's Obligations.
This Indenture shall be discharged and shall cease to be of further effect
(except as to surviving rights or registration of transfer or exchange of the
Notes, as expressly provided for in this Indenture) as to all outstanding Notes
when (i) either (a) all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by LNR and thereafter repaid to LNR or discharged
from such trust) have been delivered to the Trustee for cancellation or (b) all
Notes not theretofore delivered to the Trustee for cancellation have become due
and payable and LNR has irrevocably deposited or caused to be deposited with the
Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Notes to
the date of deposit together with irrevocable instructions from LNR directing
the Trustee to apply such funds to the payment thereof; (ii) LNR has paid all
other sums payable under this Indenture by LNR; and (iii) LNR has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel stating that all
conditions precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
LNR may, at its option and at any time, elect to have its obligations
discharged with respect to the outstanding Notes
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("Legal Defeasance"). As a result of such Legal Defeasance, LNR shall be deemed
to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, except for (i) the rights of Holders to receive payments in
respect of the principal of, premium, if any, and interest on the Notes when
such payments are due, (ii) LNR's obligations with respect to the Notes
concerning issuing temporary Notes, registration, transfer and exchange of
Notes, replacement of mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payments, (iii) the rights, powers,
trust, duties and immunities of the Trustee and LNR's obligations in connection
therewith and (iv) the Legal Defeasance provisions of this Section 8.1. In
addition, LNR may, at its option and at any time, elect to have the obligations
of LNR released with respect to Sections 4.10 through 4.18 and Article V
("Covenant Defeasance") and thereafter any omission to comply with such
obligations shall not constitute a Default or Event of Default with respect to
the Notes. In the event of Covenant Defeasance, those events described under
Section 6.1 (except those events described in Section 6.1(i),(ii) (but including
matters relating to a Change of Control Offer),(vi) and (vii)) will no longer
constitute an Event of Default with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(i) LNR must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders U.S. Legal Tender, noncallable United States
Government Obligations, or a combination thereof, in such amounts as
will be sufficient without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants
addressed to the Trustee, to pay the principal of, premium, if any,
and interest on the Notes on the stated dates for payment thereof or
on the applicable Redemption Date, as the case may be;
(ii) LNR shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee concluding that such deposit
shall not cause the Trustee to have a conflicting interest as
defined in and for purposes of the TIA;
(iii) in the case of Legal Defeasance, LNR shall have delivered to the
Trustee an Opinion of Counsel confirming that (A) LNR has received
from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such
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Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(iv) in the case of Covenant Defeasance, LNR shall have delivered to the
Trustee an Opinion of Counsel confirming that the Holders will not
recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had
not occurred;
(v) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or insofar as Events of Default under
Section 6.1(vi) or (vii) are concerned, at any time in the period
ending on the 91st day after the date of deposit (other than a
Default or Event of Default resulting from the incurrence of
Indebtedness all or a portion of the proceeds of which will be used
to defease the Notes concurrently with such incurrence);
(vi) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument to which LNR or any of its Subsidiaries is a
party or by which LNR or any of its Subsidiaries is bound;
(vii) such deposit shall not result in LNR, the Trustee or the trust
becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940, as amended;
(viii) the Holders shall have a perfected security interest under
applicable law in the U.S. Legal Tender or U.S. Government
Obligations so deposited;
(ix) LNR shall have delivered to the Trustee an Officers' Certificate
stating that the deposit was not made by LNR with the intent of
preferring the Holders over any other creditors of LNR or with the
intent of defeating, hindering, delaying or defrauding any other
creditors of LNR or others;
(x) LNR shall have delivered to the Trustee an Opinion of Counsel to the
effect that, after the 91st day following the deposit (assuming that
no Default or Event of Default shall have occurred and be continuing
on such 91st day insofar as Sections 6.1 (vi) or (vii) are
concerned), (A) the trust funds will not be subject to any rights of
holders of
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Indebtedness of LNR other than the Notes and (B) the trust funds
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally; and
(xi) LNR shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
provided for or relating to the Legal Defeasance or the Covenant
Defeasance (including without limitation that no Default or Event of
Default described in Section 6.1 (vi) or (vii) has occurred and is
continuing at the end of the 91-day period referred to in the
Opinion of Counsel referred to in clause (x) above), as the case may
be, have been complied with.
SECTION 8.2. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Section 8.1, and shall
apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of the principal of
and premium, if any, and interest on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree in writing with LNR.
LNR shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.1 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Notes.
SECTION 8.3. Repayment to LNR.
Subject to Section 8.1, the Trustee and the Paying Agent shall
promptly pay to LNR upon request any excess U.S. Legal Tender or U.S. Government
Obligations held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent shall pay
to LNR upon request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for one year; provided,
however, that the Trustee or such Paying Agent, before being required to make
any payment, may at the expense of LNR cause to be published once in a newspaper
of general circulation in the City of New York or mail to each Holder entitled
to such money notice that such money remains unclaimed and that after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to LNR. After payment to LNR, Holders entitled to such money must
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look to LNR for payment as general creditors unless an applicable law designates
another Person.
SECTION 8.4. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 8.1 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, LNR's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.1
until such time as the Trustee or Paying Agent is permitted to apply all such
U.S. Legal Tender or U.S. Government Obligations in accordance with Section 8.1;
provided, however, that if LNR has made any payment of interest or premium on or
principal of any Notes because of the reinstatement of their obligations, LNR
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the U.S. Legal Tender or U.S. Government Obligations held by the
Trustee or Paying Agent.
SECTION 8.5. Acknowledgment of Discharge by Trustee.
After (i) the conditions of Section 8.1 have been satisfied, (ii)
LNR has paid or caused to be paid all other sums payable hereunder by LNR and
(iii) LNR has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent referred to in clause (i)
above relating to the satisfaction and discharge of this Indenture have been
complied with, the Trustee upon request shall acknowledge in writing the
discharge of LNR's obligations under this Indenture except for those surviving
obligations specified in Section 8.1.
ARTICLE IX.
MODIFICATION OF THE INDENTURE
SECTION 9.1. Without Consent of Holders.
Notwithstanding Section 9.2, LNR and the Trustee may amend, waive or
supplement this Indenture without notice to or consent of any Holder: (a) to
cure any ambiguity, defect or inconsistency; (b) to comply with Section 5.1 of
this Indenture; (c) to provide for uncertificated Notes in addition to
certificated Notes; (d) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the TIA;
or (e) to make any change that would provide any additional benefit or rights to
the Holders or that does not adversely affect the rights of any Holder in any
material respect. Notwithstanding the foregoing, the Trustee and LNR may not
make any change that adversely affects the rights of any Holder in any material
respect under this Indenture without
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the consent of such Holder. In formulating its opinion on such matters, the
Trustee will be entitled to rely on such evidence as it deems appropriate,
including, without limitation, solely on an Opinion of Counsel and an Officer
Certificate of LNR.
SECTION 9.2. With Consent of Holders.
All other modifications, waivers and amendments of this Indenture
may be made with the consent of the Holders of a majority in principal amount of
the then outstanding Notes, except that, without the consent of each Holder of
the Notes affected thereby, no amendment or waiver may: (i) reduce the amount of
Notes whose Holders must consent to an amendment; (ii) reduce the rate of or
change or have the effect of changing the time for payment of interest,
including defaulted interest, on any Notes; (iii) reduce the principal of or
change or have the effect of changing the fixed maturity of any Notes, or change
the date on which any Notes may be subject to redemption or repurchase, or
reduce the redemption or repurchase price therefor; (iv) make any Notes payable
in money other than that stated in the Notes; (v) make any change in provisions
of this Indenture protecting the right of each Holder to receive payment of
principal of and premium, if any, and interest on such Note on or after the due
date thereof or to bring suit to enforce such payment, or permitting Holders of
a majority in principal amount of Notes to waive Defaults or Events of Default;
(vi) amend, change or modify in any material respect the obligation of LNR to
make and consummate a Change of Control Offer in the event of a Change of
Control or modify any of the provisions or definitions with respect thereto; or
(vii) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Notes in a manner
which adversely affects the Holders.
After an amendment, supplement or waiver under this Section 9.2
becomes effective (as provided in Section 9.4), LNR shall mail to the Holders
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of LNR to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect; provided, however, that this
Section 9.3 shall not of itself require that this Indenture or the Trustee be
qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
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SECTION 9.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or LNR received before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such
consent) to the amendment, supplement or waiver. An amendment, supplement or
waiver becomes effective upon receipt by the Trustee of such Officers'
Certificate and evidence of consent by the Holders of the requisite percentage
in principal amount of outstanding Notes.
LNR may, but shall not be obligated to, fix a Record Date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which Record Date shall be at least 30 days prior to the
first solicitation of such consent. If a Record Date is fixed, then
notwithstanding the second sentence of the immediately preceding paragraph,
those Persons who were Holders at such Record Date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
Record Date. No such consent shall be valid or effective for more than 90 days
after such Record Date unless consents from Holders of the requisite percentage
in principal amount of outstanding Notes required hereunder for the
effectiveness of such consents shall have also been given and not revoked within
such 90 day period.
SECTION 9.5. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee may require the Holder of such Note to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if LNR or the Trustee so
determine, LNR in exchange for the Note shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms.
SECTION 9.6. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or, waiver
authorized pursuant to this Article IX; provided, however, that the Trustee may,
but shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustees own rights, duties or immunities under this
Indenture. In executing such supplement or waiver the Trustee shall be entitled
to receive indemnity reasonably satisfactory to it, and shall be
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fully protected in relying upon an Opinion of Counsel and an Officers'
Certificate, stating that no Default or Event of Default shall occur as a result
of such amendment, supplement or waiver and that the execution of any amendment,
supplement or waiver authorized pursuant to this Article IX is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense of
the Trustee.
ARTICLE X.
SUBORDINATION
SECTION 10.1. Notes Subordinated to Senior Indebtedness Upon
Effectiveness of the Merger.
LNR covenants and agrees, and each Holder of the Notes, by its
acceptance thereof, likewise covenants and agrees, that all Notes shall be
issued subject to the provisions of this Article X; and each Person holding any
Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all Obligations on the Notes by
LNR shall, to the extent and in the manner herein set forth, be subordinated and
junior in right of payment to the prior payment in full in cash or Cash
Equivalents of all Obligations on Senior Indebtedness, including, without
limitation, LNR's obligations under the Credit Agreement; that the subordination
is for the benefit of, and shall be enforceable directly by, the holders of
Senior Indebtedness, and that each holder of Senior Indebtedness whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Indebtedness in reliance upon the covenants and
provisions contained in this Indenture and the Notes.
SECTION 10.2. Suspension of Payment When Senior Indebtedness is in
Default.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unreimbursed drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior Indebtedness,
no payment of any kind or character shall be made by or on behalf of LNR or any
Subsidiary of LNR or any obligor on the Notes or any other Person on its or
their behalf with respect to any Obligations on the Notes or to acquire any of
the Notes for cash or property or otherwise. In addition, if any other event of
default occurs and is continuing with respect to any Designated Senior
Indebtedness, as such event of default is defined in the instrument creating or
evidencing such Designated Senior Indebtedness, permitting the holders of such
Designated Senior Indebtedness then outstanding to accelerate the maturity
thereof and if the Representative for that issue of Designated
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Senior Indebtedness gives written notice of the event of default to the Trustee
(a "Default Notice"), then, unless and until all events of default with respect
to that issue of Designated Senior Indebtedness have been cured or waived or
have ceased to exist or the Trustee receives written notice from the
Representative for that issue of Designated Senior Indebtedness terminating the
Blockage Period (as defined below), during the 180 days after the delivery of
such Default Notice (the "Blockage Period"), neither LNR nor any other Person on
its behalf shall (x) make any payment of any kind or character with respect to
any Obligations on the Notes or (y) acquire any of the Notes for cash or
property or otherwise. Notwithstanding anything herein to the contrary, in no
event will a Blockage Period extend beyond 180 days from the date the payment on
the Notes was due and only one such Blockage Period may be commenced with
respect to all issues of Designated Senior Indebtedness within any 360
consecutive days. No event of default which existed or was continuing on the
date of the commencement of any Blockage Period with respect to the Designated
Senior Indebtedness shall be, or be made, the basis for commencement of a second
Blockage Period by the Representative of such Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period commencing after the date of
commencement of such Blockage Period that, in either case, would give rise to an
event of default pursuant to any provisions under which an event of default
previously existed or was continuing shall constitute a new event of default for
this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.2(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amount of Senior Indebtedness
held by such holders) or their respective Representatives, as their respective
interests may appear. The Trustee shall be entitled to rely on information
regarding amounts then due and owing on the Senior Indebtedness, if any,
received from the holders of Senior Indebtedness (or their Representatives) or,
if such information is not received from such holders or their Representatives,
from LNR and only amounts included in the information provided to the Trustee
shall be paid to the holders of Senior Indebtedness.
Nothing contained in this Article X shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.2 or to pursue any rights or remedies hereunder;
provided that all Senior Indebtedness thereafter due or declared to be due shall
first be paid in full in cash or Cash Equivalents before the
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Holders are entitled to receive any payment of any kind or character with
respect to Obligations on the Notes.
SECTION 10.3. Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or
Reorganization of Company.
(a) Upon any payment or distribution of assets of LNR of any kind or
character, whether in cash, property or securities, to creditors upon any total
or partial liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors or marshaling of assets of LNR or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
LNR or its property, whether voluntary or involuntary, all Obligations upon all
Senior Indebtedness shall first be paid in full in cash or Cash Equivalents, or
such payment duly provided for to the satisfaction of the holders of Senior
Indebtedness, before any payment or distribution of any kind or character is
made on account of any Obligations on the Notes, or for the acquisition of any
of the Notes for cash or property or otherwise. Upon any such dissolution,
winding-up, liquidation, reorganization, receivership or similar proceeding, any
payment or distribution of assets of LNR of any kind or character, whether in
cash, property or securities, to which the Holders of the Notes or the Trustee
under this Indenture would be entitled, except for the provisions hereof, shall
be paid by LNR or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them, directly to the holders
of Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full in
cash or Cash Equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by or
on behalf of LNR, as proceeds of security or enforcement of any right of setoff
or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Senior Indebtedness or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payment has not occurred.
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(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of LNR of any kind or character, whether in cash,
property or securities, shall be received by any Holder when such payment or
distribution is prohibited by this Section 10.3, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness (pro rata to such holders on the basis of
the respective amount of Senior Indebtedness held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash or Cash Equivalents, after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(d) The consolidation of LNR with, or the merger of LNR with or
into, another corporation or the liquidation or dissolution of LNR following the
conveyance or transfer of all or substantially all of its assets, to another
corporation upon the terms and conditions provided in Article V hereof and as
long as permitted under the terms of the Senior Indebtedness shall not be deemed
a dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 10.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume LNR's obligations
hereunder in accordance with Article V hereof.
SECTION 10.4. Holders to Be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Indebtedness, the Holders of the Notes shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of LNR applicable to the Senior Indebtedness until
the Notes shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness by or on
behalf of LNR or by or on behalf of the Holders by virtue of this Article X
which otherwise would have been made to the Holders shall, as between LNR and
the Holders of the Notes, be deemed to be a payment by LNR to or on account of
the Senior Indebtedness, it being understood that the provisions of this Article
X are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 10.5. Obligations of LNR Unconditional.
Nothing contained in this Article X or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as
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between LNR and the Holders, the obligation of LNR, which is absolute and
unconditional, to pay to the Holders the principal of and premium, if any, and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of LNR other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
X of the holders of Senior Indebtedness in respect of cash, property or
securities of LNR received upon the exercise of any such remedy. Upon any
payment or distribution of assets or securities of LNR referred to in this
Article X, the Trustee, subject to the provisions of Sections 7.1 and 7.2, and
the Holders shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which any liquidation, dissolution, winding-up or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee or agent or other Person making any
payment or distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other Indebtedness of LNR,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article X. Nothing in
this Article X shall apply to the claims of, or payments to, the Trustee under
or pursuant to Section 7.7. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of any Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Senior Indebtedness or a trustee or representative on behalf of
any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article X (although it is not obligated to make any such inquiry), the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article X, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Whenever a distribution is to be made or a notice given to holders
or owners of Senior Indebtedness, the distribution may be made and the notice
may be given to their Representative, if any.
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SECTION 10.6. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
LNR shall give prompt written notice to the Trustee of any fact
known to LNR which would prohibit the making of any payment to or by the Trustee
in respect of the Notes pursuant to the provisions of this Article X. Regardless
of anything to the contrary contained in this Article X or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Senior Indebtedness or of
any other facts which would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall have received notice in writing from
LNR, or from a holder of Senior Indebtedness or a Representative therefor,
together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such Representative, and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no such facts exist.
SECTION 10.7. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Sections 8.1 and 8.2 shall
be for the sole benefit of the Holders of the Notes and, to the extent allocated
for the payment of Notes, shall not be subject to the subordination provisions
of this Article X. Otherwise, any deposit of assets or securities by or on
behalf of LNR with the Trustee or any Paying Agent (whether or not in trust) for
the payment of principal of or interest on any Notes shall be subject to the
provisions of this Article X; provided, however, that if prior to the second
Business Day preceding the date on which by the terms of this Indenture any such
assets may become distributable for any purpose (including, without limitation,
the payment of either principal of or premium, if any, or interest on any Note)
the Trustee or such Paying Agent shall not have received with respect to such
assets the notice provided for in Section 10.6, then the Trustee or such Paying
Agent shall have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary received by it on or after such date. The
foregoing shall not apply to the Paying Agent if LNR or any Subsidiary or
Affiliate of LNR is acting as Paying Agent. Nothing contained in this Section
10.7 shall limit the right of the holders of Senior Indebtedness to recover
payments as contemplated by this Article X.
SECTION 10.8. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act
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or failure to act on the part of LNR or by any act or failure to act by any such
holder, or by any non-compliance by LNR with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.8, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article X or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place,
terms or time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against LNR
and any other Person.
SECTION 10.9. Holders Authorize Trustee to Effectuate Subordination
of Notes.
Each Holder of the Notes by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article X, and appoints the Trustee such Holder's
attorney-in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of LNR tending towards liquidation or reorganization of
the business and assets of LNR, the immediate filing of a claim for the unpaid
balance of such Holder's Notes in the form required in said proceedings and
cause said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then any of the holders
of the Senior Indebtedness or their Representative is hereby authorized to file
an appropriate claim for and on behalf of the Holders of said Notes. Nothing
herein contained shall be deemed to authorize the Trustee or the holders of
Senior Indebtedness or their Representative to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 10.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee and any agent or Affiliate of the Trustee shall be
entitled to all the rights set forth in this Article X with respect to any
Senior Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall deprive the Trustee or any such agent or
Affiliate of any of its rights as such holder.
SECTION 10.11. This Article X Not to Prevent Events of Default.
The failure to make a payment on account of principal of or premium,
if any, or interest on the Notes by reason of any provision of this Article X
will not be construed as preventing the occurrence of an Event of Default.
Nothing contained in this Article X shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Article VI or to pursue any rights or remedies hereunder
or under applicable law, subject to the rights, if any, under this Article X of
the holders, from time to time, of Senior Indebtedness.
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and it undertakes to perform or observe such of
its covenants and obligations as are specifically set forth in this Article X,
and no implied covenants or obligations with respect to the Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
liable to any such holders (other than for its willful misconduct or gross
negligence) if it shall pay over or deliver to the Holders of Notes or LNR or
any other Person money or assets in compliance with the terms of this Indenture.
Nothing in this Section 10.12 shall affect the obligation of any Person other
than the Trustee to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their Representative.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control; provided, however, that this Section
11.1 shall
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not of itself require that this Indenture or the Trustee be qualified under the
TIA or constitute any admission or acknowledgment by any party hereto that any
such qualification is required prior to the time this Indenture and the Trustee
are required by the TIA to be so qualified.
SECTION 11.2. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or overnight courier guaranteeing next-day delivery or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to LNR:
000 X.X. 000xx Xxxxxx
Xxxxx, XX 00000
Telecopier Number: (000) 000-0000
Attn: Chief Executive Officer
if to the Trustee:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
Attention: Corporate Trust Administration
Each of LNR and the Trustee by written notice to the other may
designate additional or different addresses for notices to such Person. Any
notice or communication to LNR or the Trustee shall be deemed to have been given
or made as of the date so delivered if hand delivered; when answered back, if
telexed; when receipt is acknowledged, if faxed; and five (5) calendar days
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed by
first class mail, certified or registered return receipt requested, or by
overnight courier guaranteeing next day delivery to its address as it appears on
the registration books of the Registrar. Any notice or communication shall be
mailed to any Person as described in TIA ss. 313(c), to the extent required by
the TIA.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
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SECTION 11.3. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. LNR, the
Trustee, the Registrar and any other Person shall have the protection of TIA ss.
312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by LNR to the Trustee to take any
action under this Indenture, LNR shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by LNR, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by LNR, if any,
provided for in this Indenture relating to the proposed action have been
complied with (which counsel, as to factual matters, may rely on an
Officers' Certificate).
SECTION 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.6, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
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SECTION 11.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7. Legal Holidays.
If any payment date is due on a day other than a Business Day, such
payment may be made on the next succeeding Business Day, and no interest shall
accrue for the intervening period.
SECTION 11.8. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York sitting in the County of New
York, or of the United States of America for the Southern District of New York
in any action or proceeding arising out of or relating to this Indenture.
SECTION 11.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of LNR or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Personal Liability.
No director, officer, employee or stockholder of LNR, as such, shall
have any liability for any obligations of LNR under the Notes or this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
SECTION 11.11. Successors.
All agreements of LNR in this Indenture and the Notes shall bind
their successors and permitted assigns. All agreements of the Trustee in this
Indenture shall bind its successors and permitted assigns.
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SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
LNR PROPERTY CORPORATION
By:
--------------------------------
Name:
Title:
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee
By:
--------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF SERIES A NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE THAT IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS SECURITY AND THE LAST
DATE ON WHICH THE ISSUER OF THIS SECURITY OR ANY AFFILIATED PERSON OF THE ISSUER
WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR SECURITY, RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY OF THE ISSUER,
(B) INSIDE THE UNITED STATES, TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO THE TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1
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CUSIP No.:
LNR PROPERTY CORPORATION
9 3/8% SENIOR SUBORDINATED NOTE DUE 2008, SERIES A
No. $
LNR PROPERTY CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor entities), for value received promises to pay
to or registered assigns the principal sum of
Dollars on March 15, 2008.
Interest Payment Dates: March 15 and September 15, commencing
September 15, 1998
Record Dates: March 1 and September 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, LNR has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
LNR PROPERTY CORPORATION
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Dated:
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Certificate of Authentication
This is one of the 9 3/8% or Senior Subordinated Notes due 2008,
Series A, referred to in the within-mentioned Indenture.
, as Trustee
By:
--------------------------------
Authorized Signatory
Date of Authentication: March , 1998
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(REVERSE OF SECURITY)
9 3/8% Senior Subordinated Note due 2008, Series A
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Indenture, dated as of March 24, 1998 (the
"Indenture"), and as amended from time to time, by and between LNR Property
Corporation, a Delaware corporation (the "Company")and First Trust of New York,
National Association, as trustee (the "Trustee").
(1) Interest. LNR promises to pay interest on the principal amount
of this Note at the rate per annum above. Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from March 24, 1998. LNR will pay interest semi-annually in arrears on
each Interest Payment Date, commencing September 15, 1998. Interest will be
computed on the basis of a 360-day year of twelve 30-day months and, in the case
of a partial month, the actual number of days elapsed.
LNR shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the rate borne by the Notes.
(2) Method of Payment. LNR shall pay interest on the Notes (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Notes are canceled on registration of transfer or registration of
exchange (including pursuant to an Exchange Offer (as defined in the
Registration Rights Agreement) or a Change of Control Offer) after such Record
Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. LNR shall pay principal and premium, if any, and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, LNR may pay principal
and premium, if any, and interest by check payable in such U.S. Legal Tender or
by wire transfer of immediately available funds. LNR may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
(3) Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. LNR may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders.
(4) Indenture. LNR issued the Notes under the Indenture. This Note
is one of a duly authorized issue of Notes of LNR designated as its 9 3/8%
Senior Subordinated Notes due 2008, Series A (the "Initial Notes"), limited
(except as
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otherwise provided in the Indenture) in aggregate principal amount to
$350,000,000 which may be issued under the Indenture. The Notes include the
Initial Notes, the Private Exchange Notes and the Unrestricted Notes, as defined
below, issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement. The Initial Notes, the Private Exchange Notes and the
Unrestricted Notes are treated as a single class of securities under the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of such terms. The Notes are general unsecured
obligations of LNR. Each Holder, by accepting a Note, agrees to be bound by all
of the terms and provisions of the Indenture, as the same may be amended from
time to time in accordance with its terms.
(5) Redemption. The Notes are redeemable, at LNR's option, in whole
or in part from time to time, at any time after March 15, 2003, upon not less
than 30 nor more than 60 days' notice, at the following Redemption Prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on March 15 of the years set forth below,
plus, in each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
2003 104.688%
2004 103.516%
2005 102.344%
2006 101.172%
2007 and thereafter 100.000%
Notwithstanding the foregoing, at any time, or from time to time, on
or prior to March 15, 2001, LNR may, at its option, redeem, with the net cash
proceeds of one or more Public Equity Offerings by LNR, up to 35% of the
aggregate principal amount of the Notes issued and sold by LNR at a redemption
price equal to 109.375% of the principal amount thereof, plus accrued interest
thereon, if any, to the date of redemption, provided, that at least 65% of the
aggregate principal amount of the Notes issued and sold by LNR remain
outstanding immediately following such redemption. In order to effect the
foregoing redemption with the proceeds of any Public Equity Offering, LNR shall
make such redemption not more than 60 days after the consummation of any such
Public Equity Offering.
(6) Notice of Redemption. Notice of redemption will be mailed at
least 30 but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its
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registered address. Notes in denominations larger than $1,000 may be redeemed in
part.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the Paying
Agent for redemption on such Redemption Date, then, unless LNR defaults in the
payment of such Redemption Price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price plus accrued interest, if any.
(7) Change of Control Offer. The Indenture provides that, upon the
occurrence of a Change of Control, and subject to further limitations contained
therein, LNR will make a Change of Control Offer to purchase the Notes in
accordance with the procedures set forth in the Indenture.
(8) Registration Rights. Pursuant to the Registration Rights
Agreement among LNR and the Initial Purchasers, LNR will be obligated to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for LNR's % Senior Subordinated Notes due
2008, Series B (the "Unrestricted Notes"), which will be registered under the
Securities Act, in like principal amount and having terms identical in all
material respects as the Initial Notes. The Holders of the Initial Notes shall
be entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
(9) Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as required by law or as permitted by the Indenture. The Registrar
need not register the transfer of or exchange of any Notes or portions thereof
selected for redemption except for the unredeemed portion of any Note being
redeemed in part.
(10) Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
(11) Unclaimed Money. If money for the payment of principal,
premium, if any, or interest remains unclaimed for one year, the Trustee and the
Paying Agent will pay the money back to LNR. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
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(12) Discharge Prior to Redemption or Maturity. If LNR at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of, premium, if any, and interest on the Notes
to redemption or maturity and complies with the other provisions of the
Indenture relating thereto, LNR will be discharged from certain provisions of
the Indenture and the Notes (excluding certain covenants, but including, under
certain circumstances, its obligation to pay the principal of and interest on
the Notes but without affecting the rights of the Holders to receive such
amounts from such deposits).
(13) Amendment; Supplement; Waiver. Subject to certain exceptions
set forth in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of not less than a majority
in aggregate principal amount of the Notes then outstanding, and any past
Default or Event of Default or noncompliance with any provision may be waived
with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding. Without notice to or consent of
any Holder, the parties thereto may amend or supplement the Indenture or the
Notes to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Notes in addition to or in place of certificated
Notes, comply with any requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the TIA or comply with Section
5.1 of the Indenture or make any other change that does not adversely affect the
rights of any Holder of a Note in any material respect.
(14) Restrictive Covenants. The Indenture imposes certain
limitations on the ability of LNR and its Subsidiaries to, among other things,
incur additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, create or incur liens, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, issue Preferred Stock of its Subsidiaries, and on the ability of
LNR to merge or consolidate with any other Person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of LNR's and its
Subsidiaries' assets or adopt a plan of liquidation. Such limitations are
subject to a number of important qualifications and exceptions. Pursuant to the
Indenture, LNR must annually report to the Trustee on compliance with such
limitations.
(15) Subordination. The Notes are subordinated in right of payment,
in the manner and to the extent set forth in the Indenture, to the prior payment
in full in cash or Cash Equivalents of all Obligations on Senior Indebtedness of
LNR, whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Holder by its acceptance hereof agrees to
be bound by such provisions and authorizes and expressly directs the Trustee, on
its behalf, to take such action as may be necessary or appropriate to effectuate
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the subordination provided for in the Indenture and appoints the Trustee its
attorney-in-fact for such purposes.
(16) Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor, subject to certain exceptions, will be released from
those obligations.
(17) Defaults and Remedies. Except as set forth in the Indenture, if
an Event of Default occurs and is continuing, the Trustee or the Holders of not
less than 25% in principal amount of Notes then outstanding may declare all the
Notes to be due and payable in the manner, at the time and with the effect
provided in the Indenture. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has received indemnity reasonably
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal, premium,
if any, or interest when due, for any reason or a Default in compliance with
Article Five of the Indenture) if it determines that withholding notice is in
their interest.
(18) Trustee Dealings with Company. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with LNR, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
(19) No Recourse Against Others. No partner, director, officer,
employee or stockholder, as such, of LNR shall have any liability for any
obligations of LNR under the Notes or the Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
of Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes.
(20) Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
(21) Governing Law. This Note and the Indenture shall be governed by
and construed in accordance with the laws of the State of New York, as applied
to contracts made and performed within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto and the Holders agree
to submit to the jurisdiction of the courts of the County of New York, State of
New York or of the United States of America
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for the Southern District of New York in any action or proceeding arising out of
or relating to this Note.
(22) Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(23) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, LNR has caused CUSIP
numbers to be printed on the Notes as a convenience to the Holders of the Notes.
No representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
LNR will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which includes the text of this Note.
Requests may be made to: LNR Property Corporation, 000 X.X. 000xx Xxxxxx, Xxxxx,
XX 00000.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------
--------------------------
--------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ______________________________________________, agent to
transfer this Note on the books of LNR. The agent may substitute another to act
for him.
Dated: _________________________ Signed: ________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ___________________________________________________________
Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934.
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date (provided, however,
that neither LNR nor any affiliate of LNR has held any beneficial interest in
such Note, or portion thereof, or any predecessor security at any time on or
prior to the second anniversary of the Issue Date), the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer:
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[Check One]
(1) ___ to LNR or a Subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) ___ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) ___ outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act; or
(5) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) ___ pursuant to an effective registration statement under the Securities
Act; or
(7) ___ pursuant to another available exemption from the registration
requirements of the Securities Act.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of LNR as defined in Rule 144 under the
Securities Act (an "Affiliate"):
|_| The transferee is an Affiliate of LNR.
Unless one of the items is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided, however, that if item (3), (4), (5) or (7)
is checked, LNR or the Trustee may require, prior to registering any such
transfer of the Notes, in their sole discretion, such written legal opinions,
certifications (including an investment letter in the case of box (3) or (4) and
other information as the Trustee or LNR have reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
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If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: __________________________ Signed: _______________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ___________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding LNR as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: __________________________ ______________________________________
NOTICE: To be executed by an
executive officer
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by LNR pursuant to
Section 4.14 of the Indenture, check the box below:
|_|
If you want to elect to have only part of this Note purchased by LNR
pursuant to Section 4.14 of the Indenture, state the amount you elect to have
purchased:
$____________________
Dated: ______________ __________________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed.
Signature Guarantee: _____________________________
X-00
000
XXXXXXX B
CUSIP No.:
LNR PROPERTY CORPORATION
9 3/8% SENIOR SUBORDINATED NOTE DUE 2008, SERIES B
No. $
LNR PROPERTY CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor entities), for value received promises to pay
to or registered assigns the principal sum of
Dollars on March 15, 2008.
Interest Payment Dates: March 15 and September 15 commencing
September 15, 1998
Record Dates: March 1 and September 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, LNR has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
LNR PROPERTY CORPORATION
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Dated:
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Certificate of Authentication
This is one of the 9 3/8% Senior Subordinated Notes due 2008, Series
B, referred to in the within-mentioned Indenture.
, as Trustee
By:
--------------------------------
Authorized Signatory
Date of Authentication:
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(REVERSE OF SECURITY)
9 3/8% Senior Subordinated Note due 2008, Series B
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Indenture, dated as of March 24, 1998 (the
"Indenture"), and as amended from time to time, by and between LNR Property
Corporation, a Delaware corporation (the "Company") and First Trust of New York,
National Association, as trustee (the "Trustee").
(1) Interest. LNR promises to pay interest on the principal amount
of this Note at the rate per annum shown above. Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from March 24, 1998. LNR will pay interest semi-annually
in arrears on each Interest Payment Date, commencing September 15, 1998.
Interest will be computed on the basis of a 360-day year of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed.
LNR shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the rate borne by the Notes.
(2) Method of Payment. LNR shall pay interest on the Notes (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Notes are canceled on registration of transfer or registration of
exchange (including pursuant to a Change of Control Offer) after such Record
Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. LNR shall pay principal and premium, if any, and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, LNR may pay principal
and premium, if any, and interest by check payable in such U.S. Legal Tender.
LNR may deliver any such interest payment to the Paying Agent or to a Holder at
the Holder's registered address.
(3) Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. LNR may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders.
(4) Indenture. LNR issued the Notes under the Indenture. This Note
is one of a duly authorized issue of Exchange Notes of LNR designated as its 9
3/8% Senior Subordinated Notes due 2008, Series B (the "Unrestricted Notes"),
limited (except as otherwise provided in the Indenture) in aggregate principal
amount to $350,000,000, which may be issued under the
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Indenture. The Notes include the 9 3/8% Senior Subordinated Notes due 2008,
Series A (the "Initial Notes"), the Private Exchange Notes, and the Unrestricted
Notes, issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement. The Initial Notes, the Private Exchange Notes and the
Unrestricted Notes are treated as a single class of securities under the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of such terms. The Notes are general unsecured
obligations of LNR. Each Holder, by accepting a Note, agrees to be bound by all
of the terms and provisions of the Indenture, as the same may be amended from
time to time in accordance with its terms.
(5) Redemption. The Notes are redeemable, at LNR's option, in whole
or in part from time to time, at any time after March 15, 2003, upon not less
than 30 nor more than 60 days' notice, at the following Redemption Prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on March 15 of the years set forth below,
plus, in each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
2003 104.688%
2004 103.516%
2005 102.344%
2006 101.172%
2007 and thereafter 100.000%
Notwithstanding the foregoing, at any time, or from time to time, on
or prior to March 15, 2001, LNR may, at its option, redeem, with the net cash
proceeds of one or more Public Equity Offerings by LNR, up to 35% of the
aggregate principal amount of the Notes issued and sold by LNR at a redemption
price equal to 109.375% of the principal amount thereof, plus accrued interest
thereon, if any, to the date of redemption, provided, that at least 65% of the
aggregate principal amount of the Notes issued and sold by LNR remain
outstanding immediately following such redemption. In order to effect the
foregoing redemption with the proceeds of any Public Equity Offering, LNR shall
make such redemption not more than 60 days after the consummation of any such
Public Equity Offering.
(6) Notice of Redemption. Notice of redemption will be mailed at
least 30 but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its
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registered address. Notes in denominations larger than $1,000 may be redeemed in
part.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the Paying
Agent for redemption on such Redemption Date, then, unless LNR defaults in the
payment of such Redemption Price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price plus accrued interest, if any.
(7) Change of Control Offer. The Indenture provide that, upon the
occurrence of a Change of Control, and subject to further limitations contained
therein, LNR will make a Change of Control Offer to purchase the Notes in
accordance with the procedures set forth in the Indenture.
(8) Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith required by law or as permitted by the Indenture. The Registrar need
not register the transfer of or exchange of any Notes or portions thereof
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part.
(9) Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
(10) Unclaimed Money. If money for the payment of principal,
premium, if any, or interest remains unclaimed for one year, the Trustee and the
Paying Agent will pay the money back to the Company. After that, all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
(11) Discharge Prior to Redemption or Maturity. If LNR at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and premium, if any, and interest on the
Notes to redemption or maturity and complies with the other provisions of the
Indenture relating thereto, LNR will be discharged from certain provisions of
the Indenture and the Notes (including certain covenants, but including, under
certain circumstances, its obligation to pay the principal of and interest on
the Notes but without affecting the rights of the Holders to receive such
amounts from such deposit).
(12) Amendment; Supplement; Waiver. Subject to certain exceptions
set forth in the Indenture, the Indenture or the Notes
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may be amended or supplemented with the written consent of the Holders of not
less than a majority in aggregate principal amount of the Notes then
outstanding, and any past Default or Event of Default or noncompliance with any
provision may be waived with the written consent of the Holders of not less than
a majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes, comply with any requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA or comply
with Section 5.1 of the Indenture or make any other change that does not
adversely affect the rights of any Holder of a Note in any material respect.
(13) Restrictive Covenants. The Indenture imposes certain
limitations on the ability of LNR and its Subsidiaries to, among other things,
incur additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, create or incur liens, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, issue Preferred Stock of its Subsidiaries, and on the ability of
LNR to merge or consolidate with any other Person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of LNR's and its
Subsidiaries' assets or adopt a plan of liquidation. Such limitations are
subject to a number of important qualifications and exceptions. Pursuant to the
Indenture, LNR must annually report to the Trustee on compliance with such
limitations.
(14) Subordination. The Notes are subordinated in right of payment,
in the manner and to the extent set forth in the Indenture, to the prior payment
in full in cash or Cash Equivalents of all Obligations on Senior Indebtedness of
LNR, whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Holder by its acceptance hereof agrees to
be bound by such provisions and authorizes and expressly directs the Trustee, on
its behalf, to take such action as may be necessary or appropriate to effectuate
the subordination provided for in the Indenture and appoints the Trustee its
attorney-in-fact for such purposes.
(15) Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor, subject to certain exceptions, will be released from
those obligations.
(16) Defaults and Remedies. Except as set forth in the Indenture, if
an Event of Default occurs and is continuing, the Trustee or the Holders of not
less than 25% in principal amount of Notes then outstanding may declare all the
Notes to be due and payable in the manner, at the time and with the effect
provided
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in the Indenture. Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Notes unless it has received indemnity reasonably satisfactory
to it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes notice of any continuing Default or
Event of Default (except a Default in payment of principal, premium, if any, or
interest when due, for any reason or a Default in compliance with Article Five
of the Indenture) if it determines that withholding notice is in their interest.
(17) Trustee Dealings with LNR. The Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with LNR, its Subsidiaries or their respective Affiliates
as if it were not the Trustee.
(18) No Recourse Against Others. No partner, director, officer,
employee or stockholder, as such, of LNR shall have any liability for any
obligations of LNR under the Notes or the Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
of Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes.
(19) Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
(20) Governing Law. This Note and the Indenture shall be governed by
and construed in accordance with the laws of the State of New York, as applied
to contracts made and performed within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto and the Holders agree
to submit to the jurisdiction of the courts of the County of New York, State of
New York or of the United States of America for the Southern District of New
York in any action or proceeding arising out of or relating to this Note.
(21) Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(22) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, LNR has caused CUSIP
numbers to be printed on the Notes as a convenience to the Holders of the Notes.
No
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representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
LNR will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which includes the text of this Note.
Requests may be made to: LNR Property Corporation, 000 X.X. 000xx Xxxxxx, Xxxxx,
XX 00000.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
____________________________
____________________________
____________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint , agent to transfer this Note on
the books of LNR. The agent may substitute another to act for him.
Dated: Signed:
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ___________________________________________________________
Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934.
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by LNR pursuant to
Section 4.14 of the Indenture, check the box below:
|_|
If you want to elect to have only part of this Note purchased by LNR
pursuant to Section 4.14 of the Indenture, state the amount you elect to have
purchased:
$_____________________
Dated:________________ __________________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed.
Signature Guarantee: ______________________________
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EXHIBIT C
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO LNR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
REPRESENTATIVE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.17 OF THE INDENTURE.
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EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
_________________ ___, ______
New York, New York
Ladies and Gentlemen:
In connection with our proposed purchase of 9 3/8% Senior
Subordinated Notes due 2008 (the "Notes") of LNR PROPERTY CORPORATION ("LNR"),
we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the indenture
relating to the Notes (the "Indenture") and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes except
in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act"), and all applicable State
securities laws.
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act or any other applicable securities
law, and that the Notes may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except as
permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that
if we should sell any Notes, we will do so only (i) to LNR or any
subsidiary thereof, (ii) inside the United States in accordance with Rule
144A under the Securities Act to a person who we reasonably believe is a
"qualified institutional buyer" (as defined in Rule 144A promulgated under
the Securities Act), (iii) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to the
Trustee (as defined in the Indenture) a signed letter containing certain
representations and agreements relating to the restrictions on transfer of
the Notes (the form of which letter can be obtained from the Trustee),
(iv) outside the United States in accordance with Rule 904 of Regulation S
promulgated under the Securities Act, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available),
or (vi) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing
any
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114
of the Notes from us a notice advising such purchaser that resales of the
Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to the Trustee, LNR such certification, legal
opinions and other information as the Trustee and LNR may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
6. We have received a copy of LNR's Offering Memorandum dated March
19, 1998 and acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask such
questions of representatives of LNR and receive answers thereto, as we
deem necessary in connection with our decision to purchase the Notes.
You, LNR, the Trustee, the Initial Purchasers and others are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
--------------------------------
Name:
Title:
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EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_________________ ___, ______
New York, New York
Re: LNR PROPERTY CORPORATION (the "Company")
9 3/8% Senior Subordinated Notes due 2008
(the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $_______________________
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
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You, LNR and counsel for LNR are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:
--------------------------------
Name:
Title:
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