EXECUTION COPY
LENNAR CORPORATION,
as Issuer,
THE GUARANTORS NAMED HEREIN
and
BANK ONE TRUST COMPANY, N.A.,
as successor to
The First National Bank of Chicago,
as Trustee
--------------------------------------------------------------------------------
SIXTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 5, 2003
TO INDENTURE
DATED AS OF DECEMBER 31, 1997
--------------------------------------------------------------------------------
Relating To
5.95% Senior Notes Due 2013
--------------------------------------------------------------------------------
SIXTH SUPPLEMENTAL INDENTURE, dated as of February 5, 2003 (the
"Supplemental Indenture"), to Indenture, dated as of December 31, 1997, among
Lennar Corporation (the "Company"), a Delaware corporation having its principal
office at 000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000, each of the Guarantors
named herein, and Bank One Trust Company, N.A. as successor to the First
National Bank of Chicago (the "Trustee"), a national banking association,
organized under the laws of the United States of America which has its corporate
trust office at Xxx Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx
00000-0000.
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of December 31, 1997 (the "Indenture"), providing
for the issuance from time to time of its notes and other evidences of unsecured
indebtedness, to be issued in one or more series as therein provided
("Securities");
WHEREAS, Section 2.02 of the Indenture provides that the Company and
the Trustee, at any time and from time to time, may enter into an indenture
which supplements the Indenture to establish the terms of Securities of any
series;
WHEREAS, the Company has duly authorized the creation of an issue of
Securities to be known as the 5.95% Senior Notes due 2013 (the "Notes") and to
be guaranteed by the Guarantors, and to provide therefor the Company and the
Guarantors have duly authorized the execution and delivery of this Supplemental
Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by
the Company and authenticated and delivered hereunder, the valid obligations of
the Company, and to make this Supplemental Indenture a valid agreement of the
Company and the Guarantors, in accordance with their and its terms, have been
done.
NOW, THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, each party agrees for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Notes, as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Capitalized terms used but not defined in this
Supplemental Indenture shall have the meanings ascribed to them in the
Indenture.
SECTION 1.02. References in this Supplemental Indenture to section
numbers shall be deemed to be references to section numbers of this Supplemental
Indenture unless otherwise specified.
SECTION 1.03. In the case of capitalized terms defined in this
Supplemental Indenture that are also defined in the Indenture, the meanings
ascribed to such terms in this Supplemental Indenture shall apply with respect
to the Notes.
SECTION 1.04. For purposes of this Supplemental Indenture, the
following terms have the meanings ascribed to them as follows:
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
or in such Person's capital stock or other equity interests, and options, rights
or warrants to purchase such capital stock or other equity interests, whether
now outstanding or issued after the Issue Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Bank as having a maturity
comparable to the remaining term of the Notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or (ii) if such release (or any successor release) is
not published or does not contain such prices on such Business Day, (A) the
average of the Reference Treasury Dealer Quotations for such date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if fewer than four such Reference Treasury Dealer Quotations are obtained,
the average of all such Reference Treasury Dealer Quotations.
"Consolidated Net Tangible Assets" means the total amount of assets
which would be included on a consolidated balance sheet of the Company and the
Restricted Subsidiaries under GAAP (less applicable reserves and other properly
deductible items) after deducting therefrom:
(A) all short-term liabilities, i.e., liabilities payable by their terms
less than one year from the date of determination and not renewable
or extendable at the option of the obligor for a period ending more
than one year after such date, and liabilities in respect of retiree
benefits other than pensions for which the Restricted Subsidiaries
are required to accrue pursuant to Statement of Financial Accounting
Standards No. 106;
(B) investments in Subsidiaries that are not Restricted Subsidiaries;
and
2
(C) all assets reflected on the Company's balance sheet as the carrying
value of goodwill, trade names, trademarks, patents, unamortized
debt discount, unamortized expense incurred in the issuance of debt
and other intangible assets.
"Default Interest Payment Date" has the meaning provided in Section
2.05.
"Depositary" has the meaning provided in Section 3.01.
"Event of Default" has the meaning provided in Section 5.01.
"Final Maturity" or "Final Maturity Date" shall be March l, 2013.
"Funded Debt" of any Person means all Indebtedness for borrowed
money created, incurred, assumed or guaranteed in any manner by such person, and
all Indebtedness, contingent or otherwise, incurred or assumed by such person in
connection with the acquisition of any business, property or asset, which in
each case matures more than one year after, or which by its terms is renewable
or extendible or payable out of the proceeds of similar Indebtedness incurred
pursuant to the terms of any revolving credit agreement or any similar agreement
at the option of such person for a period ending more than one year after the
date as of which Funded Debt is being determined; provided, however, that Funded
Debt shall not include (i) any Indebtedness for the payment, redemption or
satisfaction of which money (or evidences of indebtedness, if permitted under
the instrument creating or evidencing such indebtedness) in the necessary amount
shall have been irrevocably deposited in trust with a trustee or proper
depository either on or before the maturity or redemption date thereof or (ii)
any Indebtedness of such person to any of its subsidiaries or of any subsidiary
to such person or any other subsidiary or (iii) any Indebtedness incurred in
connection with the financing of operating, construction or acquisition
projects, provided that the recourse for such indebtedness is limited to the
assets of such projects.
"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, as in effect on the Issue Date.
"Global Securities" means with respect to the Notes issued
hereunder, a Note or Notes executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Supplemental Indenture and any
supplemental indentures hereto, if any, or a certified resolution of the Board
of Directors and pursuant to a written request by the Company, which shall be
registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Notes or any portion thereof, in
either case having the same terms, including, without limitation, the same
original Issue Date.
"Guarantee" has the meaning provided in Section 8.01.
"Guarantor" means (1) initially, each of the Guarantors named on the
signature pages of this Supplemental Indenture, and (2) each of the Company's
Subsidiaries which becomes a guarantor of the Notes pursuant to the provisions
of this Supplemental Indenture.
3
"Indebtedness" means, with respect to the Company or any Subsidiary,
and without duplication, (a) the principal of and premium, if any, and interest
on, and fees, costs, enforcement expenses, collateral protection expenses and
other reimbursement or indemnity obligations in respect to all indebtedness or
obligations of the Company or any Subsidiary to any Person, including but not
limited to banks and other lending institutions, for money borrowed that is
evidenced by a note, bond, debenture, loan agreement, or similar instrument or
agreement (including purchase money obligations with original maturities in
excess of one year and noncontingent reimbursement obligations in respect of
amounts paid under letters of credit); (b) all reimbursement obligations and
other liabilities (contingent or otherwise) of the Company or any Subsidiary
with respect to letters of credit, bank guarantees or bankers' acceptances, (c)
all obligations and liabilities (contingent or otherwise) in respect of leases
of the Company or any Subsidiary required, in conformity with generally accepted
accounting principles, to be accounted for as capital lease obligations on the
balance sheet of the Company, (d) all obligations of the Company or any
Subsidiary (contingent or otherwise) with respect to an interest rate or other
swap, cap or collar agreement or other similar instrument or agreement or
foreign currency hedge, exchange, purchase or similar instrument or agreement,
(e) all direct or indirect guaranties or similar agreements by the Company or
any Subsidiary in respect of, and obligations or liabilities (contingent or
otherwise) of the Company or such Subsidiary to purchase or otherwise acquire,
or otherwise assure a creditor against loss in respect of, indebtedness,
obligations or liabilities of another Person of the kind described in clauses
(a) through (d), (f) any indebtedness or other obligations, excluding any
operating leases the Company or any Subsidiary is currently (or may become) a
party to, described in clauses (a) through (d) secured by any Lien existing on
property which is owned or held by the Company or Subsidiary, regardless of
whether the indebtedness or other obligation secured thereby shall have been
assumed by the Company or such Subsidiary and (g) any and all deferrals,
renewals, extensions and refinancing of, or amendments, modification or
supplements to, any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).
"Indenture" has the meaning provided in the Recitals.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Issue Date" means February 5, 2003.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Non-Recourse Indebtedness" means any Indebtedness of the Company or
any Restricted Subsidiary for which the holder of such Indebtedness has no
recourse, directly or indirectly, to the Company or such Restricted Subsidiary
for the principal of, premium, if any, and interest on such Indebtedness, and
for which the Company or such Restricted Subsidiary is not, directly or
indirectly, obligated or otherwise liable for the principal of, premium, if any,
and interest on such Indebtedness, except pursuant to mortgages, deeds of trust
or other security interests or other
4
recourse, obligations or liabilities, in respect of specific land or other real
property interests of the Company or such Restricted Subsidiary securing such
Indebtedness; provided, however, that recourse, obligations or liabilities
solely for indemnities, breaches of warranties or representations contained in
such mortgages, deeds of trust or grants of security interests in respect of
Indebtedness will not prevent that Indebtedness from being classified as
Non-Recourse Indebtedness.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing the Notes.
"Paying Agent" means the office or agency designated by the Company
where Notes may be presented for payment.
"Permitted Liens" has the meaning provided in Section 4.01.
"Permitted Sale-Leaseback Transactions" has the meaning provided in
Section 4.02.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, trust, unincorporated
organization or government or any government agency or political subdivision.
"Primary Treasury Dealer" means a primary U.S. Government securities
dealer in New York City.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person, whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Record Date" means the Record Dates specified in the Notes.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Supplemental
Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Supplemental Indenture.
"Reference Treasury Dealer" means (a) each of Xxxxxxx Xxxxx Xxxxxx
Inc. and Banc One Capital Markets, Inc. (or their respective affiliates which
are Primary Treasury Dealers), and their respective successors; provided,
however, that if any of the foregoing shall not be a Primary Treasury Dealer the
Company shall substitute therefor another Primary Treasury Dealer; and (b) any
other Primary Treasury Dealer(s) selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Determination Date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Determination Date.
5
"Remaining Scheduled Payments" means, with respect to any Note, the
remaining scheduled payments of the principal (or of the portion) thereof to be
redeemed and interest thereon that would be due after the related Redemption
Date but for such redemption; provided, however, that, if such Redemption Date
is not an Interest Payment Date with respect to such Note, the amount of the
next succeeding scheduled interest payment thereon will be reduced by the amount
of interest accrued thereon to such Redemption Date.
"Restricted Subsidiary" means any Guarantor.
"Sale-Leaseback Transaction" means a sale or transfer made by the
Company or a Restricted Subsidiary of any property which is either (A) a
manufacturing facility, office building or warehouse whose book value equals or
exceeds 1% of Consolidated Net Tangible Assets as of the date of determination,
or (B) another property (not including a model home) which exceeds 5% of
Consolidated Net Tangible Assets as of the date of determination, if such sale
or transfer is made with the agreement, commitment or intention of leasing such
property to the Company or a Restricted Subsidiary.
"Securities" has the meaning provided in the Recitals.
"Senior Secured Credit Facilities" means the senior secured credit
facilities dated as of May 3, 2000, as amended and restated as of May 24, 2002,
between Lennar, U.S. Home Corporation, Bank One NA and the other lenders party
thereto.
"Supplemental Indenture" has the meaning provided in the Preamble.
"Subsidiary" means (i) a corporation or other entity of which a
majority in voting power of the stock or other interests is owned by the
Company, by a Subsidiary of the Company or by the Company and one or more
Subsidiaries of the Company or (ii) a partnership, the sole general partner of
which is the Company or any Subsidiary.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Trustee" means the person named as such in this Supplemental
Indenture and, subject to the provisions of Article Seven of the Indenture, any
successor to that person.
ARTICLE TWO
5.95% SENIOR NOTES DUE 2013
SECTION 2.01. Creation of Series. In accordance with Section 2.02 of
the Indenture, there is hereby created a series of Securities under the
Indenture entitled "5.95% Senior Notes due 2013".
(1) The form of the Notes is attached hereto as Exhibit A, and the
form of the certificate of authentication is included as part of Exhibit A.
6
(2) Subject to Section 2.02 of the Indenture and applicable law, the
aggregate principal amount of the Notes which may be authenticated and delivered
on the Issue Date shall not exceed $350,000,000; provided that, the Company may,
without the consent of the Holders, issue additional Notes under this
Supplemental Indenture at any time hereafter and may issue Securities of any
other series under the Indenture at any time hereafter.
(3) The aggregate principal amount of the Notes shall be payable on
the Final Maturity Date unless earlier repaid in accordance with this
Supplemental Indenture.
(4) 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 the Issue
Date. The Company shall pay interest semiannually in arrears on each Interest
Payment Date, commencing September 1, 2003. Interest shall 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.
(5) All amounts payable in connection with the Notes shall be
denominated and payable in the lawful currency of the United States.
(6) The Notes shall be payable, and may be presented for
registration of transfer and exchange, without service charge, at the office of
the Company maintained for such purpose in New York, New York, which shall
initially be the office or agency of the Trustee.
(7) The Notes shall not be convertible into any class of capital
stock of the Company.
(8) In the event that Notes are authenticated and delivered
subsequent to the date hereof pursuant to Section 2.01(2) hereof, the Company
shall obtain the same "CUSIP" number for such Notes as is printed on the Notes
outstanding at such time.
(9) Notwithstanding the foregoing, all Notes issued under this
Supplemental Indenture shall vote and consent together on all matters (as to
which any of such Notes may vote or consent) as the same series and no Notes
issued subsequent to the date hereof will have the right to vote or consent as a
separate series on any matter.
SECTION 2.02. Optional Redemption by the Company.
(1) Right to Redeem; Notice to Trustee. The Company, at its option,
may redeem the Notes in accordance with the provisions of paragraphs 5 and 6 of
the Notes. If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, it shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed and the Redemption Price that would be
in effect if such Notes were being redeemed on the date of the notice. The
Company shall give the notice to the Trustee provided for in this Section
2.02(1) at least 30 days but not more than 60 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee).
(2) Notice of Redemption. At least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail or cause to be mailed a notice
of redemption by first-class mail to the Trustee and to each Holder of Notes to
be redeemed at such Holder's address as it appears on the Note register.
7
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price that would be in effect if such Notes
were being redeemed on the date of the notice;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be presented and
surrendered to the Paying Agent to collect the Redemption Price;
(e) that interest on Notes called for redemption shall cease
to accrue on and after the Redemption Date and, unless the Company defaults in
making the redemption payment, the only remaining right of the Holder shall be
to receive payment of the Redemption Price upon presentation and surrender to
the Paying Agent of the Notes;
(f) if fewer than all the outstanding Notes are to be
redeemed, the certificate number and principal amounts of the particular Notes
to be redeemed; and
(g) the CUSIP number or numbers for the Notes called for
redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
(3) Effect of Notice of Redemption. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice. Upon presentation and
surrender to the Paying Agent, Notes called for redemption shall be paid at the
Redemption Price.
(4) Sinking Fund. There shall be no sinking fund provided for the
Notes.
SECTION 2.03. Defaulted Interest. The Company shall pay interest on
overdue principal from time to time on demand at the rate of interest borne by
the Notes. The Company 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 borne by the Notes. All such
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 the Company 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 the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business Day.
The Company shall notify the Trustee in writing of the amount of 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 the Company 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
8
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 the Company 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, the Company shall mail (or cause to be mailed) to each
Holder, as of a recent date selected by the Company, 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 Default Interest 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 5.01(1) 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, the Company 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.
ARTICLE THREE
GLOBAL SECURITIES
SECTION 3.01. If the Board of Directors of the Company shall
establish that the Notes are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee or its
agent shall authenticate and deliver such Global Security or Securities which
(1) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the outstanding Notes to be represented by such
Global Security or Securities, or such portion thereof as the Company shall
specify in writing to the Trustee, (2) shall be registered in the name of The
Depository Trust Company, New York, New York (including any successor appointed
by the Company, the "Depositary") or its nominee, (3) shall be delivered by the
Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (4) shall bear a legend substantially to the following effect:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
Beneficial interests in the Global Securities shall be credited by the
Depositary to the accounts of its participants only in denominations of $1,000
or integral multiples thereof.
SECTION 3.02. Notwithstanding any other provisions herein but
subject to the provisions of Section 3.03 below, unless the terms of a Global
Security expressly permit such Global Security to be exchanged in whole or in
part for individual Notes, a Global Security may be transferred, in whole but
not in part and in the manner provided in Section 2.08 of the
9
Indenture, only to a nominee of the Depositary for such Global Security, or to
the Depositary, or a successor Depositary for such Global Security appointed by
the Company, or to a nominee of such successor Depositary.
SECTION 3.03. (1) If at any time the Depositary for a Global
Security notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the Depositary for the
Notes ceases to be a clearing agency registered under the Securities Exchange
Act of 1934 or other applicable statute or regulation, the Company shall appoint
a successor Depositary with respect to such Global Security. If a successor
Depositary for such Global Security is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company shall execute, and the Trustee or its agent, upon
receipt of a written request by the Company for the authentication and delivery
of individual Notes in exchange for such Global Security, shall authenticate and
deliver, individual Notes in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such Global
Security.
(2) The Company may at any time and in its sole discretion determine
that the Notes or any portion thereof issued or issuable in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company shall execute, and the Trustee, upon
receipt of a written request by the Company for the authentication and delivery
of individual Notes in exchange in whole or in part for such Global Security,
shall authenticate and deliver individual Notes in definitive form in an
aggregate principal amount equal to the principal amount of such Global Security
or Securities representing such series or portion thereof in exchange for such
Global Security or Securities.
(3) If specified by the Company with respect to Notes issued or
issuable in the form of a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
individual Notes in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and deliver, without service charge, (a)
to each Person specified by such Depositary a new Note or Notes of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and (b) to such Depositary a new Global Security in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Notes delivered to the Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company shall execute and the Trustee or its agent shall
authenticate and deliver individual Notes in definitive registered form in
authorized denominations. Upon the exchange of the entire principal amount of a
Global Security for individual Notes, such Global Security shall be canceled by
the Trustee or its agent. Except as provided in the preceding paragraph, Notes
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The
Trustee or the Registrar shall deliver such Notes to the Persons in whose names
such Notes are so registered.
10
ARTICLE FOUR
ADDITIONAL COVENANTS
SECTION 4.01. Limitations on Liens. The Company shall not, nor shall
it permit any Restricted Subsidiary to, create, assume, incur or suffer to exist
any Lien, upon any of its properties or assets, whether owned on the Issue Date
or thereafter acquired, unless (1) if such Lien secures Indebtedness which is
pari passu with the Notes, then the Notes are secured on an equal and ratable
basis with the obligation so secured until such time as such obligation is no
longer secured by a Lien, (2) if such Lien secures Indebtedness which is
subordinated to the Notes, then the Notes are secured and the Lien securing such
Indebtedness is subordinated to the Lien granted to the holders of the Notes to
the same extent as such Indebtedness is subordinated to the Notes or (3) such
Lien is a Permitted Lien (as defined below).
The following Liens constitute "Permitted Liens":
(a) Liens on property of a Person existing at the time such Person
is merged into or consolidated with or otherwise acquired by the Company or any
Restricted Subsidiary, provided that such Liens were in existence prior to, and
were not created in contemplation of, such merger, consolidation or acquisitions
and do not extend to any assets other than those of the Person merged into or
consolidated with the Company or a Restricted Subsidiary;
(b) Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary; provided that such Liens were in
existence prior to, and were not created in contemplation of, such acquisition
and do not extend to any assets other than the property acquired;
(c) Liens imposed by law such as carriers', warehouseman's or
mechanics' Liens, and other Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business;
(d) Liens incurred in connection with pollution control, industrial
revenue, water, sewage or any similar bonds;
(e) Liens securing Indebtedness representing, or incurred to
finance, the cost of acquiring, constructing or improving any assets, provided
that the principal amount of such Indebtedness does not exceed 100% of such
cost, including construction charges;
(f) Liens securing Indebtedness (A) between a Restricted Subsidiary
and the Company, or (B) between Restricted Subsidiaries;
(g) Liens incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory requirements,
performance or return-of-money bonds, surety bonds or other obligations of a
like nature, in each case which are not incurred in connection with the
borrowing of money, the obtaining of advances or credit or the payment of the
deferred purchase price of property and which do not in the aggregate impair in
any material respect the use of property in the operation of the Company's
business taken as a whole;
11
(h) pledges or deposits under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
indebtedness) or leases to which the Company or any Restricted Subsidiary is a
party, or deposits to secure public or statutory obligations of the Company or
of any Restricted Subsidiary or deposits for the payment of rent, in each case
incurred in the ordinary course of business;
(i) Liens granted to any bank or other institution on the payments
to be made to such institution by the Company or any Subsidiary pursuant to any
interest rate swap or similar agreement or foreign currency hedge, exchange or
similar agreement designed to provide protection against fluctuations in
interest rates and currency exchange rates, respectively, provided that such
agreements are entered into in, or are incidental to, the ordinary course of
business;
(j) Liens arising solely by virtue of any statutory or common law
provision relating to banker's Liens, rights of set off or similar rights and
remedies;
(k) Liens arising from the Uniform Commercial Code financing
statements regarding leases;
(l) Liens securing indebtedness incurred to finance the acquisition,
construction, improvement, development or expansion of a property which is given
within 180 days of the acquisition, construction, improvement, development or
expansion of such property and which is limited to such property;
(m) Liens incurred in connection with Non-Recourse Indebtedness;
(n) Liens existing on the Issue Date;
(o) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(p) Liens securing refinancing Indebtedness; provided that any such
Lien does not extend to or cover any property or assets other than the property
or assets securing Indebtedness so refunded, refinanced or extended;
(q) easements, rights-of-way and other similar encumbrances incurred
in the ordinary course of business and encumbrances consisting of zoning
restrictions, licenses, restrictions on the use of property or minor
imperfections in title thereto which, in the aggregate, are not material in
amount, and which do not in any case materially detract from the Company's
properties subject thereto; and
(r) any extensions, substitutions, modifications, replacements or
renewals of the Permitted Liens described above.
12
Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien upon
any of its properties or assets without equally and ratably securing the Notes
if the aggregate amount of all Indebtedness then outstanding secured by such
Lien and all similar Liens, together with the aggregate net sale proceeds from
all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback
Transactions, does not exceed 20% of the total consolidated stockholders' equity
of the Company as shown on the most recent consolidated balance sheet that is
contained or incorporated in the latest annual report on Form 10-K (or
equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed
with the Securities and Exchange Commission, and is as of a date not more than
181 days prior to the date of determination, in the case of the consolidated
balance sheet contained or incorporated in an annual report on Form 10-K, or 135
days prior to the date of determination, in the case of the consolidated balance
sheet contained in the quarterly report on Form 10-Q; provided that Indebtedness
secured by Permitted Liens shall not be included in the amount of such secured
Indebtedness.
SECTION 4.02. Sale-Leaseback Transactions. The Company shall not,
and shall not permit any Restricted Subsidiary to, after the date hereof, enter
into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback
Transactions (as defined below). The following Sale-Leaseback Transactions
constitute "Permitted Sale-Leaseback Transactions":
(1) a Sale-Leaseback Transaction involving the leasing by the
Company or any Subsidiary of model homes in the Company's communities;
(2) a Sale-Leaseback Transaction relating to a property entered into
within 180 days after the later of the date of acquisition of such property by
the Company or a Restricted Subsidiary or the date of the completion of
construction or commencement of full operations on such property, whichever is
later;
(3) a Sale-Leaseback Transaction where the Company applies or causes
to be applied an amount equal to the net proceeds of such sale or transfer,
within 365 days of receipt thereof, to the retirement or prepayment (other than
any mandatory retirement or prepayment, except mandatory retirements or
prepayments required as a result of such Sale-Leaseback Transaction) of Funded
Debt of the Company or any Restricted Subsidiary which is not, by its terms or
the terms of the instrument by which it was issued, subordinate in right of
payment to the Notes, but only to the extent of the amount of proceeds so
applied;
(4) a Sale-Leaseback Transaction where the Company or any Restricted
Subsidiary would, on the effective date of such sale or transfer, be entitled,
pursuant to this Supplemental Indenture, to issue, assume or guarantee
Indebtedness secured by a Lien upon the relevant property, at least equal in
amount to the then present value (discounted at the actual rate of interest of
the Sale-Leaseback Transaction) of the obligation for the net rental payments in
respect of such Sale-Leaseback Transaction without equally and ratably securing
the Notes;
(5) a Sale-Leaseback Transaction between the Company and any
Restricted Subsidiary or among Significant Subsidiaries, provided that the
lessor shall be the Company or a wholly-owned Restricted Subsidiary; and
13
(6) a Sale-Leaseback Transaction which has a lease of no more than
three years in length.
Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any
real or tangible personal property which is not a Permitted Sale-Leaseback
Transaction, provided that the aggregate net sales proceeds from all
Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions,
together with all Indebtedness secured by Liens other than Permitted Liens, does
not exceed 20% of the total consolidated stockholders' equity of the Company as
shown on the most recent consolidated balance sheet that is contained or
incorporated in the latest annual report on Form 10-K (or equivalent report) or
quarterly report on Form 10-Q (or equivalent report) filed with the Securities
and Exchange Commission, and is as of a date not more than 181 days prior to the
date of determination, in the case of the consolidated balance sheet contained
or incorporated in an annual report on Form 10-K, or 135 days prior to the date
of determination, in the case of the consolidated balance sheet contained in the
quarterly report on Form 10-Q.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Additional Events of Default. In addition to the
applicable Events of Default set forth in Section 6.01 of the Indenture, any one
of the following events shall constitute an "Event of Default" hereunder and
thereunder whenever used with respect to the Notes in this Supplemental
Indenture (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) a default by the Company in the payment when due of interest on
the Notes, which default continues for a period of 30 days;
(2) a default by the Company in the payment when due of the
principal or Redemption Price due with respect to the Notes;
(3) a default by the Company or any Restricted Subsidiary with
respect to its obligation to pay Indebtedness for borrowed money (other than
Indebtedness which is non-recourse to the Company or the Restricted Subsidiary),
which default shall have resulted in the acceleration of, or be a failure to pay
at final maturity, Indebtedness aggregating more than $50 million;
(4) a failure to perform any other covenant or warranty of the
Company herein and in the Indenture, which continues for 30 days after written
notice as provided in Section 6.01 of the Indenture;
(5) final judgments or orders are rendered against the Company or
any Restricted Subsidiary which require the payment by the Company or any
Restricted Subsidiary of an amount (to the extent not covered by insurance) in
excess of $50 million and such judgments or
14
orders remain unstayed or unsatisfied for more than 60 days and are not being
contested in good faith by appropriate proceedings; or
(6) any event described in Sections 6.01(4) or 6.01(5) of the
Indenture shall occur with respect to any Restricted Subsidiary.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default occurs and is continuing, unless the principal of the Notes
has already become due and payable, the Trustee by notice to the Company, or the
Holders of not less than 25 percent in aggregate principal amount of the Notes
then outstanding by notice to the Company and the Trustee may declare the
outstanding principal of the Notes and any accrued and unpaid interest through
the date of such declaration on all of the Notes to be immediately due and
payable. Upon such a declaration, such outstanding principal amount and accrued
and unpaid interest, if any, shall be due and payable immediately. If an Event
of Default specified in Section 6.01(4) or (5) of the Indenture or Section
5.01(6) of this Supplemental Indenture occurs and is continuing, the outstanding
principal amount of the Notes shall automatically become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holders. The Holders of a majority in aggregate principal amount of the
Notes then outstanding, on behalf of the Holders of all of the Notes, by notice
to the Company and the Trustee (and without notice to any other Holder), may
rescind any acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of the outstanding principal amount of
any of the Notes that has become due solely as a result of acceleration and if
all amounts due to the Trustee under Section 7.07 of the Indenture have been
paid. No such rescission shall affect any subsequent Default or Event of Default
or impair any right consequent thereto.
In case the Trustee shall have proceeded to enforce any right under
this Supplemental Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission and annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company, the Holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder and all rights,
remedies and powers of the Company, the Holders of Notes, and the Trustee shall
continue as though no such proceeding had been taken.
The Trustee shall within 90 days after a Trust Officer has knowledge
of the occurrence of a Default or any Event of Default, mail to all Holders, as
the names and addresses of such Holders appear upon the Note register, notice of
all Defaults or Events of Default known to a Trust Officer, unless such Default
or Event of Default is cured or waived before the giving of such notice and
provided that, except in the case of default in the payment of the principal,
interest or Redemption Price, as the case may be, on any of the Notes, the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of directors and/or officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders.
The Holders of a majority in principal amount of the Notes then
outstanding shall have the right to direct the time, method and place of
conducting any proceedings for any remedy available to the Trustee, subject to
the limitations specified in the Indenture.
15
ARTICLE SIX
DISCHARGE OF SUPPLEMENTAL INDENTURE
Except as set forth in this Article Six to the contrary, the terms
in Article Eight of the Indenture shall govern.
SECTION 6.01. Discharge of Supplemental Indenture. When (1) the
Company shall deliver to the Trustee for cancellation all Notes theretofore
authenticated (other than any Notes which have been destroyed, lost or stolen
and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled, or (2) all the Notes
not theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year, and the Company shall deposit with the Trustee, in trust, monies
sufficient to pay at the Final Maturity Date (other than any Notes which shall
have been mutilated, destroyed, lost or stolen and in lieu of or in substitution
for which other Notes shall have been authenticated and delivered) not
theretofore canceled or delivered to the Trustee for cancellation, including the
principal amount and interest accrued to the Final Maturity Date, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then the Indenture and this Supplemental Indenture shall cease to
be of further effect with respect to the Notes (except as to (i) remaining
rights of registration of transfer, substitution and exchange of Notes, (ii)
rights hereunder of Holders to receive payments of the principal amount,
including interest due with respect to the Notes and the other rights, duties
and obligations of Holders, as beneficiaries hereof with respect to the amounts,
if any, so deposited with the Trustee and (iii) the rights, obligations and
immunities of the Trustee hereunder and under the Indenture with respect to the
Notes), and the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel as required by Section 6.03 and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging the Indenture and this Supplemental Indenture
with respect to the Notes; the Company, however, hereby agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with the Indenture with
respect to the Notes, this Supplemental Indenture or the Notes.
SECTION 6.02. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 8.02 of the Indenture by
reason of any order or judgment of any court of governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under the Indenture and this Supplemental Indenture shall be revived
and reinstated with respect to the Notes as though no deposit had occurred
pursuant to Section 6.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money in accordance with Section 8.02 of the
Indenture, provided, however, that if the Company makes any payment of principal
amount or Redemption Price of or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
16
SECTION 6.03. Officers' Certificate; Opinion of Counsel. Upon any application or
demand by the Company to the Trustee to take any action under Section 6.01, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in the Indenture and this
Supplemental Indenture relating to the proposed action have been complied with,
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each such Officers' Certificate and Opinion of Counsel provided for
in this Supplemental Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant pursuant to the previous paragraph shall
comply with the provisions of Section 12.05 of the Indenture.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.01. With Consent of Holders. In addition to those matters
described in Section 9.02 of the Indenture which require the consent of the
Holder so affected to amend, supplement or waive any provision of the Indenture
or this Supplemental Indenture, without the consent of the Holder so affected,
the Company and the Trustee may not:
(1) without the consent of the Holder of each Note so affected,
extend the fixed maturity of any Note or any installment of interest thereon,
reduce the principal amount, interest rate, Redemption Price, or amount due upon
acceleration, impair the right of a Holder to institute suit for the payment
thereof, change the currency in which the Notes are payable,
(2) release any Guarantor except as provided in Article Eight
hereof, or
(3) without the consent of the Holders of all of the Notes then
outstanding, reduce the aforesaid percentage of Notes the Holders of which are
required to consent to any such supplemental indenture.
Except as set forth in this Article Seven to the contrary, the terms
in Article Nine of the Indenture shall govern.
ARTICLE EIGHT
GUARANTEE OF NOTES
SECTION 8.01. Unconditional Guarantee. Each Guarantor, if any,
hereby jointly and severally, unconditionally and irrevocably guarantees (such
guarantee to be referred to herein as a "Guarantee") to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, that: (a) all amounts due with respect to the Notes shall be duly
and punctually paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest, if any, on the Notes and all other obligations of the Company or
the Guarantors to the Holders or the Trustee hereunder or thereunder and all
other obligations shall be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time of
17
payment or renewal of any Notes or any of such other obligations, the same shall
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed, or failing performance of
any other obligation of the Company to the Holders under this Supplemental
Indenture or under the Notes, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Supplemental Indenture or the Notes
shall constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes to accelerate the obligations of the Guarantors hereunder in
the same manner and to the same extent as the obligations of the Company.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Supplemental Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular Note,
or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Guarantors hereby waives the
benefit of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes, this
Supplemental Indenture, the Indenture and this Guarantee. This Guarantee is a
guarantee of payment and not of collection. Each Guarantor further agrees that,
as between it, on the one hand, and the Holders of Notes and the Trustee, on the
other hand, (a) subject to this Article Eight, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Five hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Guarantee.
No stockholder, officer, director, employee or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under this Guarantee by reason of his, her or its status as such stockholder,
officer, director, employee or incorporator.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in an
amount pro rata, based on the net assets of each Guarantor, determined in
accordance with GAAP.
SECTION 8.02. Limitations on Guarantees; Release or Suspension of
Particular Guarantors' Obligations. The obligations of each Guarantor under its
Guarantee will be limited to the maximum amount which, after giving effect to
all other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to its contribution obligations under this Supplemental
Indenture, will result in the
18
obligations of such Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law.
The Guarantors shall include (i) each of the Guarantors named on the
signature pages of this Supplemental Indenture, (ii) each of the Company's
Subsidiaries that in the future executes a supplemental indenture in which such
Subsidiary agrees to be bound by the terms hereof as a Guarantor; and (iii) any
subsidiary that is a "Restricted Subsidiary" pursuant to the Indenture, dated as
of May 3, 2000, by and among the Company, the guarantors named therein and the
Trustee, relating to the Company's 9.95% Senior Notes due 2009, whether formed
or acquired after the Issue Date, that guarantees any outstanding Indebtedness
of the Company or any Subsidiary; provided, however, that if any Guarantor is
released from its guarantee of the outstanding Indebtedness of the Company or
any Restricted Subsidiary, such Guarantor shall be automatically released from
its obligations as Guarantor, and from and after such date, such Guarantor shall
cease to constitute a Guarantor and, provided further, that during any period
when the principal amount of the Company's or any Restricted Subsidiary's
obligations other than the Notes that the Guarantor is guaranteeing totals, in
the aggregate, less than $75 million, the obligations of such Guarantor as
Guarantor shall be automatically suspended, and such Guarantor shall not
constitute a Guarantor, for such period.
SECTION 8.03. Execution and Delivery of Guarantee. To further
evidence the Guarantee set forth in Section 8.01, each Guarantor hereby agrees
to execute and deliver to the Trustee a Guarantee in substantially the form of
Exhibit B hereto. Such Guarantee shall be executed on behalf of each Guarantor
by either manual or facsimile signature of an officer of each Guarantor, each of
whom, in each case, shall have been duly authorized to so execute by all
requisite corporate action. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any Note or Notes.
If an officer of a Guarantor whose signature is on this Supplemental
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, such Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Supplemental Indenture on behalf of each Guarantor.
SECTION 8.04. Release of a Guarantor due to Extraordinary Events. If
no Default exists or would exist under the Indenture, upon the sale or
disposition of all of the Capital Stock of a Guarantor by the Company or a
Subsidiary of the Company, or upon the consolidation or merger of a Guarantor
with or into any Person (in each case, other than to the Company or an Affiliate
of the Company or Subsidiary), or if any Guarantor is dissolved or liquidated,
such Guarantor and each Subsidiary of such Guarantor that is also a Guarantor
shall be deemed released from all obligations under this Article Eight without
any further action required on the part of the Trustee or any Holder.
19
The Trustee shall execute any documents reasonably requested by the
Company or a Guarantor in order to evidence the release of such Guarantor from
its obligations under its Guarantee endorsed on the Notes under this Article
Eight.
Nothing contained in the Indenture, this Supplemental Indenture or in any
of the Notes shall prevent any consolidation or merger of a Guarantor with or
into the Company or another Guarantor or shall prevent any sale or conveyance of
the property of a Guarantor as an entirety or substantially as an entirety to
the Company or another Guarantor.
SECTION 8.05. Waiver of Subrogation. Until this Supplemental Indenture is
discharged and all of the Notes are discharged and paid in full, each Guarantor
hereby irrevocably waives and agrees not to exercise any claim or other rights
which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of the Company's obligations
under the Notes or this Supplemental Indenture and such Guarantor's obligations
under this Guarantee and this Supplemental Indenture, in any such instance
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Holders against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
any amounts owing to the Trustee or the Holders of Notes under the Notes, this
Supplemental Indenture, or any other document or instrument delivered under or
in connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for
the benefit of, and held in trust for the benefit of, the Trustee or the Holders
and shall forthwith be paid to the Trustee for the benefit of itself or such
Holders to be credited and applied to the obligations in favor of the Trustee or
the Holders, as the case may be, whether matured or unmatured, in accordance
with the terms of this Supplemental Indenture. Each Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by this Supplemental Indenture and that the waiver set forth in
this Section 8.05 is knowingly made in contemplation of such benefits.
SECTION 8.06. No Set-Off. Each payment to be made by a Guarantor hereunder
in respect of the Obligations shall be payable in the currency or currencies in
which such Obligations are denominated, and shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
SECTION 8.07. Obligations Absolute. The obligations of each Guarantor
hereunder are and shall be absolute and unconditional and any monies or amounts
expressed to be owing or payable by each Guarantor hereunder which may not be
recoverable from such Guarantor on the basis of a Guarantee shall be recoverable
from such Guarantor as a primary obligor and principal debtor in respect
thereof.
SECTION 8.08. Obligations Continuing. The obligations of each Guarantor
hereunder shall be continuing and shall remain in full force and effect until
all the obligations have been paid and satisfied in full. Each Guarantor agrees
with the Trustee that it will from time to time
20
deliver to the Trustee suitable acknowledgments of its continued liability
hereunder and under any other instrument or instruments in such form as counsel
to the Trustee may advise and as will prevent any action brought against it in
respect of any default hereunder being barred by any statute of limitations now
or hereafter in force and, in the event of the failure of a Guarantor so to do,
it hereby irrevocably appoints the Trustee the attorney and agent of such
Guarantor to make, execute and deliver such written acknowledgment or
acknowledgments or other instruments as may from time to time become necessary
or advisable, in the judgment of the Trustee on the advice of counsel, to fully
maintain and keep in force the liability of such Guarantor hereunder.
SECTION 8.09. Obligations Not Reduced. The obligations of each Guarantor
hereunder shall not be satisfied, reduced or discharged except solely by the
payment of such principal, premium, if any, interest, fees and other monies or
amounts as may at any time prior to discharge of this Supplemental Indenture
pursuant to Article Six be or become owing or payable under or by virtue of or
otherwise in connection with the Notes or this Supplemental Indenture.
SECTION 8.10. Obligations Reinstated. The obligations of each Guarantor
hereunder shall continue to be effective or shall be reinstated, as the case may
be, if at any time any payment which would otherwise have reduced the
obligations of any Guarantor hereunder (whether such payment shall have been
made by or on behalf of the Company or by or on behalf of a Guarantor) is
rescinded or reclaimed from the Trustee or any of the Holders upon the
insolvency, bankruptcy, liquidation or reorganization of the Company or any
Guarantor or otherwise, all as though such payment had not been made. If demand
for, or acceleration of the time for, payment by the Company is stayed upon the
insolvency, bankruptcy, liquidation or reorganization of the Company, all such
Indebtedness otherwise subject to demand for payment or acceleration shall
nonetheless be payable by each Guarantor as provided herein.
SECTION 8.11. Obligations Not Affected. Except as otherwise provided in
Sections 8.02 and 8.04, the obligations of each Guarantor hereunder shall not be
affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by any Guarantor or any of
the Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against any Guarantor hereunder or might operate to release
or otherwise exonerate any Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise, including, without limitation:
(1) any limitation of status or power, disability, incapacity or other
circumstance relating to the Company or any other person, including any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding up or other proceeding involving or affecting the Company
or any other person;
(2) any irregularity, defect, unenforceability or invalidity in respect of
any indebtedness or other obligation of the Company or any other person under
this Supplemental Indenture, the Notes or any other document or instrument;
21
(3) any failure of the Company, whether or not without fault on its part,
to perform or comply with any of the provisions of this Supplemental Indenture
or the Notes, or to give notice thereof to a Guarantor;
(4) the taking or enforcing or exercising or the refusal or neglect to
take or enforce or exercise any right or remedy from or against the Company or
any other Person or their respective assets or the release or discharge of any
such right or remedy;
(5) the granting of time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Company or any other
Person;
(6) any change in the time, manner or place of payment of, or in any other
term of, any of the Notes, or any other amendment, variation, supplement,
replacement or waiver of, or any consent to departure from, any of the Notes or
this Supplemental Indenture, including, without limitation, any increase or
decrease in any amount due with respect to any of the Notes;
(7) any change in the ownership, control, name, objects, businesses,
assets, capital structure or constitution of the Company or a Guarantor;
(8) any merger or amalgamation of the Company or a Guarantor with any
Person or Persons;
(9) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Obligations or the obligations of a Guarantor under its Guarantee; and
(10) any other circumstance (other than by complete, irrevocable payment)
that might otherwise constitute a legal or equitable discharge or defense of the
Company under this Supplemental Indenture or the Notes or of a Guarantor in
respect of its Guarantee hereunder.
SECTION 8.12. Waiver. Without in any way limiting the provisions of
Section 8.01 hereof, each Guarantor hereby waives notice of acceptance hereof,
notice of any liability of any Guarantor hereunder, notice or proof of reliance
by the Holders upon the obligations of any Guarantor hereunder, and diligence,
presentment, demand for payment on the Company, protest, notice of dishonor or
non-payment of any of the Obligations, or other notice or formalities to the
Company or any Guarantor of any kind whatsoever.
SECTION 8.13. No Obligation to Take Action Against the Company. Neither
the Trustee nor any other Person shall have any obligation to enforce or exhaust
any rights or remedies or to take any other steps under any security for the
Obligations or against the Company or any other Person or any Property of the
Company or any other Person before the Trustee is entitled to demand payment and
performance by any or all Guarantors of their liabilities and obligations under
their Guarantees or under this Supplemental Indenture.
SECTION 8.14. Dealing with the Company and Others. The Holders, without
releasing, discharging, limiting or otherwise affecting in whole or in part the
obligations and
22
liabilities of any Guarantor hereunder and without the consent of or notice to
any Guarantor, may:
(1) grant time, renewals, extension, compromises, concessions, waivers,
releases, discharges and other indulgences to the Company or any other Person;
(2) take or abstain from taking security or collateral from the Company or
from perfecting security or collateral of the Company;
(3) release, discharge, compromise, realize, enforce or otherwise deal
with or do any act or thing in respect of (with or without consideration) any
and all collateral, mortgages or other security given by the Company or any
third party with respect to the obligations or matters contemplated by this
Supplemental Indenture or the Notes;
(4) accept compromises or arrangements from the Company;
(5) apply all monies at any time received from the Company or from any
security upon such part of the Obligations as the Holders may see fit or change
any such application in whole or in part from time to time as the Holders may
see fit; and
(6) otherwise deal with, or waive or modify their right to deal with, the
Company and all other Persons and any security as the Holders or the Trustee may
see fit.
SECTION 8.15. Default and Enforcement. If any Guarantor fails to pay in
accordance with Section 8.01 hereof, the Trustee may proceed in its name as
trustee hereunder in the enforcement of the Guarantee of any such Guarantor and
such Guarantor's obligations thereunder and hereunder by any remedy provided by
law, whether by legal proceedings or otherwise, and to recover from such
Guarantor the obligations.
SECTION 8.16. Amendment, Etc. No amendment, modification or waiver of any
provision of this Supplemental Indenture relating to any Guarantor or consent to
any departure by any Guarantor or any other Person from any such provision will
in any event be effective unless it is signed by such Guarantor and the Trustee.
SECTION 8.17. Acknowledgment. Each Guarantor hereby acknowledges
communication of the terms of this Supplemental Indenture and the Notes and
consents to and approves of the same.
SECTION 8.18. Costs and Expenses. Each Guarantor shall pay on demand by
the Trustee any and all costs, fees and expenses (including, without limitation,
legal fees on a solicitor and client basis) incurred by the Trustee, its agents,
advisors and counsel or any of the Holders in enforcing any of their rights
under any Guarantee.
SECTION 8.19. No Merger or Waiver; Cumulative Remedies. No Guarantee shall
operate by way of merger of any of the obligations of a Guarantor under any
other agreement, including, without limitation, this Supplemental Indenture. No
failure to exercise and no delay in exercising, on the part of the Trustee or
the Holders, any right, remedy, power or privilege hereunder or under the
Supplemental Indenture or the Notes, shall operate as a waiver thereof;
23
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Supplemental Indenture or the Notes preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges in the
Guarantee and under this Supplemental Indenture, the Notes and any other
document or instrument between a Guarantor and/or the Company and the Trustee
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 8.20. Survival of Obligations. Without prejudice to the survival
of any of the other obligations of each Guarantor hereunder, the obligations of
each Guarantor under Section 10.01 shall survive the payment in full of the
Obligations and shall be enforceable against such Guarantor without regard to
and without giving effect to any defense, right of offset or counterclaim
available to or which may be asserted by the Company or any Guarantor.
SECTION 8.21. Guarantee in Addition to Other Obligations. The obligations
of each Guarantor under its Guarantee and this Supplemental Indenture are in
addition to and not in substitution for any other obligations to the Trustee or
to any of the Holders in relation to this Supplemental Indenture or the Notes
and any guarantees or security at any time held by or for the benefit of any of
them.
SECTION 8.22. Severability. Any provision of this Article Eight which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction unless its removal would substantially defeat the basic
intent, spirit and purpose of this Supplemental Indenture and this Article
Eight.
SECTION 8.23. Successors and Assigns. Each Guarantee shall be binding upon
and inure to the benefit of each Guarantor and the Trustee and the other Holders
and their respective successors and permitted assigns, except that no Guarantor
may assign any of its obligations hereunder or thereunder.
SECTION 8.24. Acknowledgement under TIA. Each Guarantor acknowledges that,
by virtue of its Guarantee, it is becoming an "obligor" on indenture securities
under the TIA.
ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. TIA Controls. If any provision hereof limits, qualifies or
conflicts with the duties imposed by Section 310 through 317 of the TIA, the
imposed duties shall control.
SECTION 9.02. Conflict with Indenture. To the extent not expressly amended
or modified by this Supplemental Indenture, the Indenture shall remain in full
force and effect. If any provision of this Supplemental Indenture relating to
the Notes is inconsistent with any provision of the Indenture, the provision of
this Supplemental Indenture shall control with regard to the Notes.
SECTION 9.03. Governing Law. This Supplemental Indenture and the Notes
shall be governed by and construed in accordance with the laws of the State of
New York. The Company
24
submits to the jurisdiction of the courts of the State of New York sitting in
the Borough of Manhattan, City of New York, and of the United States District
Court for the Southern District of New York, in any action or proceeding to
enforce any of its obligations under this Supplemental Indenture or with regard
to the Notes, and agrees not to seek a transfer of any such action or proceeding
on the basis of inconvenience of the forum or otherwise (but the Company shall
not be prevented from removing any such action or proceeding from a state court
to the United States District Court for the Southern District of New York). The
Company agrees that process in any such action or proceeding may be served upon
it by registered mail or in any other manner permitted by the rules of the court
in which the action or proceeding is brought.
SECTION 9.04. Successors. All agreements of the Company in the Indenture,
this Supplemental Indenture and the Notes shall bind its successors. All
agreements of the Trustee in the Indenture and this Supplemental Indenture shall
bind its successors.
SECTION 9.05. Counterparts. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
25
IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused
it to be duly executed as of the day and year first above written.
LENNAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
Authorized signatory for each of the
Guarantors listed on Schedule I hereto
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Siguatory
BANK ONE TRUST COMPANY, N.A.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
CUSIP No.:
LENNAR CORPORATION
5.95% SENIOR NOTES DUE 2009
No. $
Interest Rate: 5.95% per annum.
Interest Payment Dates: March 1 and September 1, commencing September 1,
2003
Record Dates: February 15 and August 15
Lennar Corporation, a Delaware corporation (the "Company," which term
includes any successor entities), for value received, promises to pay to
or registered assigns, on March 1, 2013, the principal amount of
Dollars ($ ), together with interest thereon as hereinafter
provided.
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.
A-1
IN WITNESS WHEREOF, Lennar Corporation has caused this instrument to be
duly executed under its corporate seal.
LENNAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice Chairman
Attest:
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Title: Assistant Secretary
[SEAL]
Dated: 2/5/2003
---------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes described in
the within-mentioned Indenture and
Supplemental Indenture.
BANK ONE TRUST COMPANY, N.A., as Trustee
By: /s/ Xxxx X. Xxxxx
-----------------------------
Authorized Signatory
A-2
LENNAR CORPORATION
5.95% SENIOR NOTE DUE 2013
1. INTEREST
The Company 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 the Issue Date. The Company shall pay interest semi-annually in arrears on
each Interest Payment Date, commencing as of the Interest Payment Date referred
to above. 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.
The Company 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
Subject to the terms and conditions of the Supplemental Indenture, the
Company shall (a) pay interest on the Notes (except defaulted interest) to the
Persons who are the registered Holders of Notes at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are canceled transferred or exchanged after such Record Date, and (b) make all
other payments in respect of the Notes to the Persons who are registered Holders
of Notes at the close of business on the Business Day preceding the Redemption
Date or Final Maturity, as the case may be. Holders must surrender Notes to a
Paying Agent to collect such payments in respect of the Notes referred to in
clause (b) of the preceding sentence. The Company shall pay cash amounts in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may make the cash
payments by check payable in such money.
3. PAYING AGENT, AND REGISTRAR
Initially, Bank One Trust Company, N.A., a national banking association
(the "Trustee"), shall act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice,
other than notice to the Trustee. The Company or any of its Subsidiaries or any
of their Affiliates may act as Paying Agent, Registrar or coregistrar.
4. SUPPLEMENTAL INDENTURE
The Company issued the Notes under the Sixth Supplemental Indenture (the
"Supplemental Indenture"), dated as of February 5, 2003, among the Company, the
Guarantors named therein and the Trustee, and the Indenture. Capitalized terms
used herein and not defined herein have the meanings ascribed thereto in the
Supplemental Indenture. The Notes are subject to all such terms, and Holders are
referred to the Supplemental Indenture and the Indenture for a statement of
those terms.
A-3
The Notes are general unsecured, unsubordinated obligations of the Company
in the aggregate principal amount of $350,000,000 to be issued on the Issue
Date; provided that, the Company may, without the consent of the Holders, issue
additional Notes under this Supplemental Indenture at any time thereafter. The
Indenture and the Supplemental Indenture do not limit other indebtedness of the
Company.
5. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Notes. The Notes are redeemable as a
whole, or from time to time in part, at any time at the option of the Company at
a Redemption Price equal to the greater of: (a) 100% of their principal amount;
and (b) the present value of the Remaining Scheduled Payments on the Notes being
redeemed on the Redemption Date, discounted to the Redemption Date, on a
semiannual basis, at the Treasury Rate plus 30 basis points (0.30%).
6. NOTICE OF REDEMPTION AT THE OPTION OF THE COMPANY
Notice of redemption at the option of the Company shall be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at the Holder's registered address. If money sufficient to
pay the Redemption Price of all Notes (or portions thereof) to be redeemed on
the Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, interest ceases to accrue on such Notes or portions thereof on
and after such date. Notes in denominations larger than $1,000 may be redeemed
in part but only in integral multiples of $1,000.
7. RANKING
The Notes shall be direct, unsecured obligations of the Company and shall
rank pari passu in right of payment with all other unsecured and unsubordinated
indebtedness of the Company.
8. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiplies of $1,000. A Holder may transfer Notes in
accordance with the Supplemental Indenture and the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any governmental taxes and fees required by law or
permitted by the Supplemental Indenture. The Registrar need not transfer or
exchange any Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Note not to be redeemed) or any Notes for a
period of 15 days before any selection of Notes to be redeemed.
9. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
10. UNCLAIMED MONEY OR PROPERTY
A-4
The Trustee and the Paying Agent shall return to the Company upon written
request any money or property held by them for the payment of any amount with
respect to the Notes that remains unclaimed for two years, provided, however,
that the Trustee or such Paying Agent, before being required to make any such
return, shall at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each such
Holder notice that such money or property remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication or mailing, any unclaimed money or property then remaining
shall be returned to the Company. After return to the Company, Holders entitled
to the money or property must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another Person.
11. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture and the
Supplemental Indenture, (i) the Supplemental Indenture or the Notes may be
amended with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes at the time outstanding and (ii) certain
defaults or noncompliance with certain provisions may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
at the time outstanding. Subject to certain exceptions set forth in the
Indenture and the Supplemental Indenture, without the consent of any Holder, the
Company and the Trustee may amend the Supplemental Indenture or the Notes to
cure any ambiguity, defect or inconsistency, to make any change that does not
adversely affect the right of any Holder, to convey, transfer, assign, mortgage
or pledge to the Trustee as security for the Notes any property or assets, to
evidence the succession of another corporation to the company (or successive
successions) and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company, to add to the covenants of the
Company such further covenants, restrictions or conditions as the Board of
Directors and the Trustee shall consider to be for the benefit of the Holders of
Notes, and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions a Default
or an Event of Default permitting the enforcement of all or any of the several
remedies provided in the Supplemental Indenture and the Indenture, to evidence
and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Notes, or to modify, eliminate or add to the provisions of
the Supplemental Indenture to such extent as shall be necessary for the
Supplemental Indenture to comply with the TIA, or under any similar federal
statute hereafter enacted.
12. DEFAULTS AND REMEDIES
Under the Supplemental Indenture, Events of Default include (i) a default
by the Company in the payment of any interest which continues for more than 30
days after the due date, (ii) a default by the Company in the payment of any
principal or Redemption Price due with respect to the Notes; (iii) a default by
the Company or any Restricted Subsidiary with respect to its obligation to pay
Indebtedness for borrowed money (other than Indebtedness which is non-recourse
to the Company or the Restricted Subsidiary), which default shall have resulted
in the acceleration of, or be a failure to pay at final maturity, Indebtedness
aggregating more than $50 million; (iv) a failure to perform any other covenant
or warranty of the Company herein and in
A-5
the Indenture, which continues for 30 days after written notice as provided in
Section 6.01 of the Indenture; (v) final judgments or orders are rendered
against the Company or any Restricted Subsidiary which require the payment by
the Company or any Restricted Subsidiary of an amount (to the extent not covered
by insurance) in excess of $50 million and such judgments or orders remain
unstayed or unsatisfied for more than 60 days and are not being contested in
good faith by appropriate proceedings; and (vi) any event described in Sections
6.01(4) or 6.01(5) of the Indenture with respect to the Company or any
Restricted Subsidiary. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate principal amount of the
Notes at the time outstanding, may declare the outstanding principal of the
Notes and any accrued and unpaid interest through the date of such declaration
on all of the Notes to be immediately due and payable. Certain events of
bankruptcy or insolvency are Events of Default which shall result in the
outstanding principal amount of all Notes being declared due and payable
immediately upon the occurrence of such Events of Default.
Holders may not enforce the Supplemental Indenture, the Indenture or the
Notes except as provided in the Indenture and the Supplemental Indenture. The
Trustee may refuse to enforce the Indenture, the Supplemental Indenture and the
Notes unless it receives reasonable indemnity or security. Subject to certain
limitations, conditions and exceptions, Holders of a majority in aggregate
principal amount of the Notes at the time outstanding may direct the Trustee in
its exercise of any trust or power, including the annulment of a declaration of
acceleration. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of amounts specified in clauses (i) and
(ii) above) if it determines that withholding notice is in their interests.
13. TRUSTEE DEALINGS WITH THE 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 and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14. NO RECOURSE AGAINST OTHERS
A director, officer, or employee, as such, of the Company or any
Subsidiary, the Indenture or any stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Notes or the
Supplemental Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
15. GUARANTEES
This Note will be entitled to the benefits of certain Guarantees, if any,
made for the benefit of the Holders. Reference is hereby made to the
Supplemental Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
16. AUTHENTICATION
A-6
This Note shall not be valid until an authorized officer of the Trustee
manually signs the Trustee's Certificate of Authentication on the other side of
this Note.
17. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TENANT (=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 Gift to Minors
Act).
18. GOVERNING LAW
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE SUPPLEMENTAL INDENTURE
AND THIS NOTE.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Supplemental Indenture which has in it the text of this
Note in larger type. Requests may be made to:
Lennar Corporation
000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
A-7
ASSIGNMENT
For value received hereby sell(s), assign(s) and
transfer(s) unto (Please insert social security or other Taxpayer
Identification Number of assignee) the within Note, and hereby irrevocably
constitutes and appoints attorney to transfer the said Note on the
books of the Company, with full power of substitution in the premises.
Dated:
---------------------------------------------
Signature(s)
NOTICE: The above signatures of the holder(s)
hereof must correspond with the name as
written upon the face of the Note in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------------
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.
A-8
EXHIBIT B
GUARANTEE
For value received, the undersigned each hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holders of the
Notes the cash payments in United States Dollars of any amounts due with respect
to the Notes in the amounts and at the times when due and interest on all
overdue amounts, if lawful, and the payment or performance of all other
obligations of the Company under the Supplemental Indenture (as defined below)
or the Notes, to the Holder of this Note and the Trustee, all in accordance with
and subject to the terms and limitations of this Note, Article Eight of the
Supplemental Indenture and this Guarantee. This Guarantee will become effective
in accordance with Article Eight of the Supplemental Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Sixth Supplemental Indenture, dated as of February 5,
2003, among Lennar Corporation, a Delaware corporation, the Guarantors named
therein and Bank One Trust Company, N.A., as trustee (the "Trustee"), as amended
or supplemented (the "Supplemental Indenture").
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Eight of the Supplemental Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all of the other provisions
of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAW. Each Guarantor hereby agrees to submit to the jurisdiction of the courts
of the State of New York in any action or proceeding arising out of or relating
to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Supplemental Indenture.
The undersigned acknowledges that this Guarantee is subject to the TIA and
the undersigned agrees to discharge its duties under the TIA.
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to be duly
executed.
Dated: February 5, 2003
-----------------------------
[GUARANTOR],
as Guarantor
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Siguatory
By:
-----------------------------------
Name:
Title:
B-1
