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LENNAR CORPORATION,
Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
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SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 24, 1999
TO INDENTURE
DATED AS OF DECEMBER 31, 1997
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Relating To
7 5/8% Senior Notes Due 2009
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SECOND SUPPLEMENTAL INDENTURE, dated as of February 24, 1999 (the
"Supplemental Indenture"), to Indenture, dated as of December 31, 1997, between
Lennar Corporation (the "Company"), a Delaware corporation having its principal
office at 700 N.W. 107th Avenue, Miami, Florida 33172, and 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
One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
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 7 5/8% Senior Notes Due 2009 (the "Notes") and to
provide therefor the Company has 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, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS SECOND 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:
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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:
"Adjusted Treasury Rate" means, with respect to any Determination Date,
the rate per annum equal to the semi-annual 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 Determination Date, plus 37.5 basis points.
"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.
"beneficial owner" shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Securities Exchange Act of 1934.
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A "Change in Control" shall be deemed to have occurred at such time
after the original issuance of the Notes as:
(a) any Person (including any syndicate or group deemed to be
a "person" under Section 13(d)(3) of the Securities Exchange Act of 1934), other
than the Company, any Subsidiary, any employee benefit plan of the Company or
any such Subsidiary, or Permitted Holders is or becomes the beneficial owner,
directly or indirectly, through a purchase or other acquisition transaction or
series of transactions (other than a merger or consolidation involving the
Company), of shares of capital stock of the Company entitling such Person to
exercise in excess of 50% of the total voting power of all shares of capital
stock of the Company entitled to vote generally in the election of directors;
(b) there occurs any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of another Person into
the Company, or any sale or transfer of the assets of the Company as, or
substantially as, an entirety, to another Person (other than (i) any such
transaction pursuant to which the holders of the Voting Stock immediately prior
to such transaction have, directly or indirectly, shares of capital stock of the
continuing or surviving corporation immediately after such transaction which
entitle such holders to exercise in excess of 50% of the total voting power of
all shares of capital stock of the continuing or surviving corporation entitled
to vote generally in the election of directors and (ii) any merger (A) which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Voting Stock or (B) which is effected solely to change the
jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Voting Stock solely into shares
of stock carrying substantially the same relative rights as the Voting Stock);
or
(c) a change in the Board of Directors of the Company in which
the individuals who constituted the Board of Directors of the Company at the
beginning of the two-year period immediately preceding such change (together
with any other director whose election to the Board of Directors of the Company
or whose nomination for election by the stockholders of the Company was approved
by a vote of at least a majority of the directors then in office either who were
directors at the beginning of such period or whose election or nomination for
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election was previously so approved) cease for any reason to constitute a
majority of the directors then in office.
"Change in Control Purchase Date" has the meaning provided in Section
2.03.
"Change in Control Purchase Notice" has the meaning provided in Section
2.03.
"Change in Control Purchase Price" has the meaning provided in Section
2.03.
"Common Stock" means the Company's Common Stock, par value $.10 per
share.
"Company Change in Control Notice" has the meaning provided in Section
2.03.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker 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 Determination
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 Determination 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 three such Reference Treasury Dealer Quotations are obtained,
the average of all such Reference Treasury Dealer Quotations.
"Controlled" means ownership or control of more than 50% of the voting
power of such entity.
"Depositary" has the meaning provided in Article Three.
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"Determination Date" means, with respect to the calculation of the
Make-Whole Price in connection with any redemption, repurchase or acceleration
of the Notes, the date of redemption, repurchase or acceleration.
"Event of Default" has the meaning provided in Section 5.01.
"Final Maturity" or "Final Maturity Date" shall be March 1, 2009.
"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.
"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
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the same terms, including, without limitation, the same original Issue Date.
"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, modifications or
supplements to, any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).
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"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" of any Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Make-Whole Price" means, with respect to any Note as of any
Determination Date, an amount equal to the greater of (i) 100% of the principal
amount of such Note and (ii) as determined by an Independent Investment Banker,
the sum of the present values of the remaining scheduled payments of principal
and interest thereon (not including any portion of such payments of interest
accrued as of the Determination Date) discounted to the Determination Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate, plus, in each case, accrued and unpaid interest
thereon to such Determination Date.
"Paying Agent" means the office or agency designated by the Company
where Notes may be presented for payment.
"Permitted Holders" means any current holder of the Company's Class B
Common Stock and any permitted transferee of the Company's Class B Common Stock
under the terms of the Company's Certificate of Incorporation as it exists on
February 19, 1999.
"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, joint venture,
joint-stock company, trust, unincorporated organization or government or any
government agency or political subdivision.
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"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 each of BT Alex. Brown Incorporated,
Salomon Smith Barney Inc. SBC Warburg Dillon Read Inc., and First Chicago
Capital Markets, Inc. and their respective successors; provided, however, that
if any of the foregoing shall not be a primary U.S. Government securities dealer
in New York City (a "Primary Treasury Dealer") the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Determination Date, the average 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 by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such Determination Date.
"Sale-Leaseback Transaction" means any arrangement with any person
providing for the leasing by the Company or a Subsidiary as lessee of any real
or tangible personal property, which property has been or is to be sold or
transferred by the Company or such Subsidiary to such person.
"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.
"Trustee" means the person named as such in this Supplemental Indenture
and, subject to the provisions of Article 7 of the Indenture, any successor to
that person.
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"Voting Stock" means the Common Stock, the Company's Class B Common
Stock and any other stock of the Company which votes together with the Common
Stock in the election of directors (without regard to whether there has been an
arrearage in the payment of dividends on preferred stock).
ARTICLE TWO
7 5/8% SENIOR NOTES DUE 2009
SECTION 2.01. In accordance with Section 2.02 of the Indenture, there is hereby
created a series of Securities under the Indenture entitled "7 5/8% Senior Notes
due 2009".
(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.
(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
shall not exceed $500,000,000; provided that, the aggregate principal amount of
Notes to be issued on the Issue Date shall not exceed $282,000,000.
(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 semi-annually in arrears on each Interest
Payment Date, commencing September 1, 1999. 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.
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(7) The Notes shall not be convertible into any class of capital stock
of the Company.
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.
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;
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(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. Repurchase at Option of the Holder Upon a Change in Control.
(1) If a Change in Control shall occur at any time prior to the Final
Maturity Date, each Holder of Notes shall have the right, at such Holder's
option, to require the Company to purchase such Holder's Notes on the date (the
"Change in Control Purchase Date") (or if such date is not a Business Day, the
next succeeding Business Day) that is 35 days after the date of the Change in
Control. The Notes shall be repurchased in integral multiples of $l,000. The
Company shall purchase such Notes for Cash at a price (the "Change in Control
Purchase Price") equal to the Make-Whole Price as of the Change in Control
Purchase Date. No Notes may be repurchased at the option of the Holders due to a
Change in Control if there has occurred and is continuing an Event of Default
(other than a default in the payment of the Change in Control Purchase Price
with respect to such Notes).
(2) The Company, or at its request (which must be received by the
Trustee at least three Business Days (or such lesser period as agreed to by the
Trustee) prior to the date the Trustee is requested to give such notice as
described below) the Trustee in the name of and at the expense of the Company,
shall mail to all Holders of record of the Notes a notice (a "Company Change in
Control Notice") of the occurrence of a Change in Control and of the repurchase
right arising as a result thereof on or before the
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fifteenth day after the occurrence of such Change in Control. The Company shall
promptly furnish to the Trustee a copy of such notice.
(3) For a Note to be so repurchased at the option of the Holder, the
Paying Agent must receive such Note with the form entitled "Change in Control
Purchase Notice" on the reverse thereof duly completed, together with such Note
duly endorsed for transfer, on or before noon New York City time on the Change
in Control Purchase Date. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Note for redemption shall be
determined by the Company, whose determination shall be final and binding.
SECTION 2.04. Further Conditions for Purchase at the Option of Holders Upon a
Change in Control
(1) Effect of Change in Control Purchase Notice. Upon receipt by the
Company of the Change in Control Purchase Notice specified in Section 2.03(3),
the Holder of the Note in respect of which such Change in Control Purchase
Notice was given shall (unless such Change in Control Purchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Change in Control Purchase Price with respect to such
Note. Such Change in Control Purchase Price shall be paid to such Holder
promptly following the later of (x) the Change in Control Purchase Date
(provided the conditions in or Section 2.03(3) have been satisfied) and (y) the
time of delivery or book-entry transfer of such Note to the Paying Agent by the
Holder thereof in the manner required by Section 2.03(3).
A Change in Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent at any
time prior to the close of business on the Change in Control Purchase Date to
which it relates specifying:
(a) the certificate number of the Note in respect of which
such notice of withdrawal is being submitted,
(b) the principal amount of the Note with respect to which
such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which remains
subject to the original Change in Control Purchase
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Notice, and which has been or shall be delivered for purchase by the Company.
There shall be no redemption pursuant to Section 2.03 if there has
occurred prior to, on or after, as the case may be, the giving, by the Holders
of such Notes, of the required Change in Control Purchase Notice and is
continuing an Event of Default (other than a default in the payment of the
Change in Control Purchase Price with respect to such Notes).
(2) Deposit of Change in Control Purchase Price. On or before 3:00 p.m.
New York City time on the Change in Control Purchase Date the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or an
Affiliate of the Company is acting as the Paying Agent, shall segregate and hold
in trust) an amount of money sufficient to pay the aggregate Change in Control
Purchase Price of all the Notes or portions thereof which are to be purchased as
of such Change in Control Purchase Date.
(3) Notes Purchased in Part. Any Note that is to be purchased only in
part shall be surrendered at the office of the Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered which is not purchased or redeemed.
(4) Covenant to Comply with Securities Laws Upon Purchase of Notes. In
connection with any offer to purchase Notes under Section 2.03 hereof, the
Company shall (a) comply with Rule 14e-1 (which term, as used herein, includes
any successor provision thereto) under the Securities Exchange Act of 1934, if
applicable, and (b) otherwise comply with all federal and state securities laws
so as to permit the rights and obligations under Section 2.03 to be exercised in
the time and in the manner specified in Section 2.03.
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(5) Repayment to the Company. The Trustee and the Paying Agent shall
return to the Company any cash that remains unclaimed as provided in paragraph
12 of the Notes, together with any interest that the Trustee has agreed to pay,
if any, held by them for the payment of a Change in Control Purchase Price;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 2.04(2) exceeds the aggregate
Change in Control Purchase Price, as the case may be, of the Notes or portions
thereof which the Company is obligated to purchase as of the Change in Control
Purchase Date, then promptly after the Business Day following the Change in
Control Purchase Date, the Trustee and the Paying Agent shall return any such
excess to the Company together with any interest that the Trustee has agreed to
pay, if any.
SECTION 2.05. 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 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
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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
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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 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
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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.
ARTICLE FOUR
ADDITIONAL COVENANTS
SECTION 4.01. Limitation on Liens. The Company shall not, nor shall it permit
any 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
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basis with the obligation so secured until such time as such obligation is no
longer secured by a Lien or (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.
There shall be excluded from the restriction referred to in the next
preceding paragraph the following Liens (the Liens set forth in the following
clauses (a) through (i) being the "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 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
Subsidiary; (b) Liens on property existing at the time of acquisition thereof by
the Company or any 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 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; (e) Liens existing on the Issue Date; (f) 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; (g) 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;
(h) any extensions, substitutions, modifications, replacements or renewals of
the foregoing; and (i) 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
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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.
Notwithstanding the foregoing, the Company may, and may permit any
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 15% 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 and Leaseback Transactions. The Company shall not, nor shall
it permit any Subsidiary to, enter into any Sale-Leaseback Transaction. There
will be excluded from this restriction the following Sale-Leaseback Transactions
(the Sale-Leaseback Transactions set forth in the following clauses (1) through
(3) being "Permitted Sale-Leaseback Transactions"): (1) a Sale-Leaseback
Transaction involving the leasing by the Company and its Subsidiaries of model
homes in their communities, (2) a Sale-Leaseback Transaction relating to a
property which occurs within 120 days from the date of acquisition of such
property by the Company or a Subsidiary or the date of the completion of
construction or commencement of full operations on such property, whichever is
later, or (3) a Sale-Leaseback Transaction where the Company, within 120 days
after such Sale-Leaseback Transaction, applies or causes to be applied to the
retirement of Funded Debt of the Company or any Subsidiary (other than Funded
Debt of the Company which by its terms or the terms of the instrument pursuant
to which it was issued is subordinate in right of
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payment to the Notes) proceeds of the sale of such property, but only to the
extent of the amount of proceeds so applied.
Notwithstanding the foregoing provisions, the Company may, and may
permit any 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 15% 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,
Redemption Price, or Change in Control Purchase Price due with respect to the
Notes;
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(3) a default by the Company or any Subsidiary with respect to its
obligation to pay Indebtedness for borrowed money (other than Indebtedness which
is non-recourse to the Company or the Subsidiary), which default shall have
resulted in the acceleration of, or be a failure to pay at final maturity,
Indebtedness aggregating more than $20 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
of its Subsidiaries which require the payment by the Company or any of its
Subsidiaries of an amount (to the extent not covered by insurance) in excess of
$20 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; or
(6) any event described in Sections 6.01(4) or 6.01(5) of the Indenture
shall occur with respect to the Company or any of its Subsidiaries.
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 Make-Whole
Price on all of the Notes to be immediately due and payable. Upon such a
declaration, such Make-Whole Price 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 Make-Whole
Price on all 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 Make-Whole Price on
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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, Redemption Price, Change in Control Purchase 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.
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
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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 (other
than any Change in Control Purchase Price with respect to a Change in Control
occurring after the date of such deposit), 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
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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.
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, Change in Control Purchase Price,
Redemption Price, or amount due upon acceleration change the obligation of the
Company to repurchase any Note upon the occurrence of any Change in Control in a
manner adverse to Holders of Notes, impair
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the right of a Holder to institute suit for the payment thereof, change the
currency in which the Notes are payable, or
(2) 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
MISCELLANEOUS
SECTION 8.01. 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 8.02. 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 8.03. 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 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 8.04. Successors. All agreements of the Company in the Indenture, this
Supplemental Indenture and the Notes shall bind
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its successors. All agreements of the Trustee in the Indenture and this
Supplemental Indenture shall bind its successors.
SECTION 8.05. 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.
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:
------------------------------
Name: Stuart A. Miller
Title: Chief Executive Officer
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------
Name:
Title:
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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.: 528057 AB0
LENNAR CORPORATION
7 5/8% SENIOR NOTES DUE 2009
No. 1 $282,000,000
Interest Rate: 7 5/8% per annum.
Interest Payment Dates: March 1 and September 1, commencing
September 1, 1999
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 CEDE & CO. or registered assigns, on March 1, 2009, the principal amount of
TWO HUNDRED EIGHTY TWO MILLION Dollars ($282,000,000), 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.
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IN WITNESS WHEREOF, Lennar Corporation has caused this
instrument to be duly executed under its corporate seal.
LENNAR CORPORATION
By:
------------------------------
Title:
Attest:
By:
------------------------------
Title:
[SEAL]
Dated: February , 1999
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes described in the
within-mentioned Indenture and Supplemental
Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:
--------------------------
Authorized Signatory
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LENNAR CORPORATION
7 5/8% SENIOR NOTE DUE 2009
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, or at the close of business on a
Change in Control Purchase Date. 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, The First National Bank of Chicago, a national banking
association (the "Trustee"), shall act as Paying Agent and Registrar. The
Company may appoint and change any Paying
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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 co-registrar.
4. SUPPLEMENTAL INDENTURE
The Company issued the Notes under the Second Supplemental Indenture
(the "Supplemental Indenture"), dated as of February 24, 1999, between the
Company 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.
The Notes are general unsecured, unsubordinated obligations of the
Company limited to $282,000,000 aggregate principal amount. 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 Make-Whole Price.
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. PURCHASE AT THE OPTION OF THE HOLDER UPON A CHANGE IN CONTROL
(a) If a Change in Control shall occur at any time prior to the Final
Maturity Date, each Holder of Notes shall have the
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right, at such Holder's option and subject to the terms and conditions of the
Supplemental Indenture, to require the Company to purchase such Holder's Notes
on the Business Day that is 35 days after the date of the Change in Control for
a purchase price (the "Change in Control Purchase Price") equal to the
Make-Whole Price at the Change in Control Purchase Date, which Change in Control
Purchase Price shall be paid in cash. Notes in denominations larger than $1,000
may be redeemed in part in connection with a Change in Control, but only in
integral multiples of $1,000.
(b) Holders have the right to withdraw any Change in Control Purchase
Notice by delivery to the Paying Agent of a written notice of withdrawal in
accordance with the provisions of the Supplemental Indenture.
(c) If cash sufficient to pay a Change in Control Purchase Price of all
Notes or portions thereof to be purchased as of the Change in Control Purchase
Date is deposited with the Trustee or any Paying Agent on the Change in Control
Purchase Date, interest ceases to accrue on such Notes (or portions thereof) on
and after such date, and the Holder thereof shall have no other rights as such
(other than the right to receive the Change in Control Purchase Price upon
surrender or such Note).
8. 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.
9. 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 in
respect of which a Change in Control Purchase Notice has been given and not
withdrawn (except, in the case of a Note to be purchased in part, the portion of
the Note not to be purchased)
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or any Notes for a period of 15 days before any selection of Notes to be
redeemed.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
11. UNCLAIMED MONEY OR PROPERTY
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.
12. 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
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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 statue hereafter enacted.
13. 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, Redemption Price, or Change in Control Purchase Price due with
respect to the Notes; (iii) a default by the Company or any Subsidiary with
respect to its obligation to pay Indebtedness for borrowed money (other than
Indebtedness which is non-recourse to the Company or the Subsidiary), which
default shall have resulted in the acceleration of, or be a failure to pay at
final maturity, Indebtedness aggregating more than $20 million; (iv) 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; (v) final judgments or orders are rendered
against the Company or any of its Subsidiaries which require the payment by the
Company or any of its Subsidiaries of an amount (to the extent not covered by
insurance) in excess of $20 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 of its Subsidiaries.
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 Make-Whole Price of all the Notes to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which shall result in the Make-Whole Price of all Notes being declared
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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.
14. 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.
15. 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.
16. AUTHENTICATION
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.
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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
700 N.W. 107th Avenue
Miami, Florida 33172
Attn: Chief Financial Officer
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CHANGE IN CONTROL PURCHASE NOTICE
To: Lennar Corporation
The undersigned registered Holder of this Note hereby acknowledges
receipt of a notice from Lennar Corporation (the "Company") as to the occurrence
of a Change in Control with respect to the Company and requests and instructs
the Company to repurchase this Note, or the portion hereof (which is $1,000 in
principal amount or an integral multiple thereof) designated below, in
accordance with the terms of the Supplemental Indenture referred to in this Note
and directs that the check in payment for this Note or the portion thereof and
any Notes representing any unrepurchased principal amount hereof, be issued and
delivered to the registered Holder hereof unless a different name has been
indicated below. If any portion of this Note not repurchased is to be issued in
the name of a Person other than the undersigned, the undersigned shall pay all
governmental taxes and fees payable with respect to such transfer.
Dated:
-----------------------------------
Signature(s)
Fill in for registration of Notes if to be issued other than to and in the name
of registered holder:
- ------------------------------
(Name)
- ------------------------------
(Street Address)
- ------------------------------
(City, state and zip code)
Please print name and address
principal amount to be purchased
(if less than all):
$__,000
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-----------------------------------
Social Security or Other
Taxpayer Number
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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.
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