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Exhibit 4.(d)
LENNAR CORPORATION,
Issuer,
THE GUARANTORS NAMED HEREIN
and
BANK ONE TRUST COMPANY, N.A.,
as successor to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
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Third Supplemental Indenture
Dated as of May 3, 2000
To Indenture
Dated as of December 31, 1997
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Relating To
Lennar Corporation's 7 5/8% Senior Notes Due 2009
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THIRD SUPPLEMENTAL INDENTURE, dated as of May 3, 2000 (the "Supplemental
Indenture"), to Indenture, dated as of December 31, 1997, between Lennar
Corporation (the "Company"), a Delaware corporation, each of the parties named
as Guarantors on the signature pages of this Supplemental Indenture and Bank One
Trust Company, N.A., as successor to The First National Bank of Chicago, a
national banking association, organized under the laws of the United States of
America, as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of December 31, 1997 (the "Base 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 Base Indenture provides that the Company
and the Trustee, at any time and from time to time, may enter into an indenture
which supplements the Base Indenture to establish the terms of securities of any
series;
WHEREAS, the Company and the Trustee are parties to a Second
Supplemental Indenture to the Base Indenture, dated as of February 19, 1999 (the
"Second Supplemental Indenture"), governing the Company's 7 5/8% Senior Notes
Due 2009 (the "Notes"); and
WHEREAS, the Company and the Trustee are entering into this
Supplemental Indenture in order to (1) provide the Notes with the benefits of
the Guarantees (as defined below) and (2) recognize that the Notes are secured
on an equal and ratable basis with the Company's obligations under its Credit
Agreement, dated May 3, 2000 (the "Credit Agreement"), among the Company, Bank
One, NA, Bankers Trust Company and the other lenders named therein (the
"Lenders"), all as provided in the Company Pledge Agreement, dated May 3, 2000,
between the Company and Bank One, NA, the Subsidiary Pledge Agreement, dated May
3, 2000, between the Pledgors named therein and Bank One, NA and the Collateral
Trust Agreement, dated May 3, 2000, between the Company and Bank One, NA.
NOW, THEREFORE, THIS THIRD 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 control 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:
"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 May 3, 2000, including, without limitation, all
Disqualified Stock and Preferred Stock.
"Collateral Trust Agreement" means the Collateral Trust Agreement,
dated as of May 3, 2000, by and among the Company, the Guarantors and Bank One,
NA, as Trustee
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (1) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (2) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part) (but if in part, only to the extent thereof); provided,
however, that the term "guarantee" shall not include (A) endorsements for
collection or deposit in the ordinary course of business and (B) guarantees
(other than guarantees of Indebtedness) by Lennar in respect of assisting one or
more Subsidiaries in the ordinary course of their respective businesses,
including without limitation guarantees of trade obligations and operating
leases, on ordinary business terms. The term "guarantee" used as a verb has a
corresponding meaning.
"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.
"Guarantors" means (1) initially, those parties named as Guarantors on
the signature pages of this Supplemental Indenture, and (2) each of Lennar's
Subsidiaries which becomes a guarantor of the Notes pursuant to the provisions
of this Supplemental Indenture.
"Holder" means the Person in whose name a Note is registered in the
books of the Registrar for the Notes.
"Indenture" means the Base Indenture together with the Second
Supplemental Indenture.
"Investments" shall have the meaning ascribed to it under the New
Indenture.
"New Indenture" means the indenture dated as of May 3, 2000, relating
to the relating to an issue of the Company's 9.95% Senior Notes Due 2010.
"Non-Recourse Indebtedness" shall have the meaning ascribed to it under
the New Indenture.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board
of Directors, the Chief Executive Officer, the President, any Vice President,
the Chief Financial Officer, the Treasurer, the Controller, or the Secretary of
such Person, or any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer, Controller or any Treasurer of Lennar
and otherwise complying with the requirements of the Indenture.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of the
Indenture, as they relate to the giving of an Opinion of Counsel.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Pledge Agreements" means the Company Pledge Agreement, dated as of May
3, 2000, by and between the Company and Bank One, NA, as Trustee and the
Subsidiary Pledge Agreement, dated as of May 3, 2000, by and between the
Pledgors named therein and Bank One, NA, as Trustee
ARTICLE TWO
GUARANTEE OF NOTES
SECTION 2.01. 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, upon redemption at the option of Holders pursuant
to the provisions of the Notes relating thereto, 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 under the Indenture
(including amounts due the Trustee under Section 7.7 of the Base Indenture) and
all other obligations shall be promptly paid in full or performed, all in
accordance with the terms hereof or of the Indenture; and (b) in case of any
extension of time of 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 the 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 the 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 the 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 of the Notes or the Indenture, 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, the Indenture
and this Guarantee. This Guarantee is a guarantee of payment and not of
collection. If any Holder or the Trustee is required by any court or otherwise
to return to the Company or to any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or such
Guarantor, any amount paid by the Company or such Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. 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 Two, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI of the Base
Indenture and/or Article V of the Second Supplemental Indenture 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 VI of the Base Indenture and/or Article V of the Second Supplemental
Indenture, 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 2.02. Limitations on Guarantees.
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 the Indenture will result in the
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 designated as a "Restricted Subsidiary" pursuant to the New
Indenture, whether formed or acquired after May 3, 2000, that guarantees any
outstanding Indebtedness of the Company or any Restricted Subsidiary pursuant to
the New Indenture; 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.
SECTION 2.03 Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 2.01,
each Guarantor hereby agrees to execute and deliver to the Trustee a Guarantee
in substantially the form of Exhibit A hereto. Such Guarantee shall be executed
on behalf of each Guarantor by either manual or facsimile signature of two
Officers 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 the
Indenture, 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 2.04 Release of a Guarantor.
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, or if a Guarantor is designated an Unrestricted Subsidiary in
accordance with the New Indenture, such Guarantor and each Subsidiary of such
Guarantor that is also a Guarantor shall be deemed released from all obligations
under this Article Two without any further action required on the part of the
Trustee or any Holder.
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 and under this
Article Two.
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 2.05 Waiver of Subrogation.
Until the 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 the Indenture and
such Guarantor's obligations under this Supplemental Indenture, the Guarantee
and the 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, the 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 the Indenture.
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by the Indenture and that the
waiver set forth in this Section 2.05 is knowingly made in contemplation of such
benefits.
SECTION 2.06. No Set-Off.
Each payment to be made by a Guarantor hereunder in respect of
its 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 2.07. 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 2.08. 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 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 2.09. 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 the Indenture be or become owing or payable under or by
virtue of or otherwise in connection with the Notes or the Indenture.
SECTION 2.10. 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 2.11 Obligations Not Affected.
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:
(a) 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;
(b) any irregularity, defect, unenforceability or invalidity
in respect of any indebtedness or other obligation of the Company or any other
person under the Indenture, the Notes or any other document or instrument;
(c) any failure of the Company, whether or not without fault
on its part, to perform or comply with any of the provisions of the Indenture,
this Supplemental Indenture or the Notes, or to give notice thereof to a
Guarantor;
(d) 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;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Company
or any other Person;
(f) 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, this Supplemental Indenture or the Indenture, including, without
limitation, any increase or decrease in any amount due with respect to any of
the Notes;
(g) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the Company or a
Guarantor;
(h) any merger or amalgamation of the Company or a Guarantor
with any Person or Persons;
(i) 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
(j) any other circumstance, including release of the Guarantor
pursuant to Section 2.04 (other than by complete, irrevocable payment) that
might otherwise constitute a legal or equitable discharge or defense of the
Company under the Indenture or the Notes or of a Guarantor in respect of its
Guarantee hereunder.
SECTION 2.12. Waiver.
Without in any way limiting the provisions of Section 2.01
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 2.13. 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 of the Company under the Indenture
and the Notes and of the Guarantors hereunder 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, under this
Supplemental Indenture or under the Indenture.
SECTION 2.14. Dealing with the Company and Others.
The Holders, without releasing, discharging, limiting or
otherwise affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Company
or any other Person;
(b) take or abstain from taking security or collateral from
the Company or from perfecting security or collateral of the Company;
(c) 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 the Indenture or the Notes;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or
from any security upon such part of the Obligations of the Company under the
Indenture and the Notes 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
(f) 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 2.15. Default and Enforcement.
If any Guarantor fails to pay in accordance with Section 2.01
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 2.16. Amendment, Etc.
No amendment, modification or waiver of any provision of the
Indenture nor 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 2.17. Acknowledgment.
Each Guarantor hereby acknowledges communication of the terms
of this Supplemental Indenture and consents to and approves of the same.
SECTION 2.18. 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 2.19. 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, the 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 Indenture or the Notes, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under the 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 the 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 2.20. 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 2.01 shall survive the payment in full of the Obligations of the Company
under the Indenture and the Notes 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 2.21. Guarantee in Addition to Other Obligations.
The obligations of each Guarantor under its Guarantee, this
Supplemental Indenture and the 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 the Indenture or the Notes and any
guarantees or security at any time held by or for the benefit of any of them.
SECTION 2.22. Severability.
Any provision of this Article Two 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 the Indenture and this Article Two.
SECTION 2.23 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.
ARTICLE THREE
ADDITIONAL SECURITY FOR NOTES
SECTION 3.01. Pledges of Additional Security.
In order for the Company to satisfy its obligations under Section 4.01 of the
Second Supplemental Indenture, the Company and certain of its subsidiaries have
entered into the Pledge Agreements and the Collateral Trust Agreement providing
for a lien on certain assets of the Company and certain of its subsidiaries to
secure the obligations of the Company under the Notes on an equal and ratable
basis with the Company's obligations under the Credit Agreement and the
Company's Zero Coupon Senior Convertible Debentures due 2018.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01. 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 4.02. 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 4.03. 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 4.04. 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 4.05. 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.
BANK ONE TRUST COMPANY, N.A.
By:
-------------------------------------
Name:
Title:
LENNAR CORPORATION
By: /s/ STUART A. MILLER
-------------------------------------
Name: Stuart A. Miller
Title: Chief Executive Officer
GUARANTORS
BCDC CORP.,
BOCA GREENS, INC.,
BOCA ISLES CLUB, INC.,
BOCA ISLES SOUTH CLUB, INC.,
BRAMALEA CALIFORNIA, INC.,
BRAMALEA CALIFORNIA PROPERTIES, INC.,
BRAMALEA CALIFORNIA REALTY, INC.,
CLODINE-BELLAIRE LP, INC.,
CLUB PEMBROKE ISLES, INC.,
DCA AT BANYAN TREE, INC.,
DCA AT NORTH LAUDERDALE, INC.,
DCA AT PEMBROKE POINTE, INC.,
DCA AT WIGGINS BAY, INC.,
DCA GENERAL CONTRACTORS, INC.,
DCA HOMES OF CENTRAL FLORIDA, INC.,
DCA NJ REALTY, INC.,
DCA OF BROWARD COUNTY, INC.,
DCA OF HIALEAH, INC.,
DCA OF LAKE WORTH, INC.,
DCA OF NEW JERSEY, INC.,
DEVCO LAND CORP.,
DYEING & FINISHING, INC.,
FIRST ATLANTIC BUILDING CORP.,
GREYSTONE CONSTRUCTION, INC.,
GREYSTONE HOMES, INC.,
GREYSTONE HOMES OF NEVADA, INC.,
GREYSTONE NEVADA, LLC,
HARRIS COUNTY LP, INC.,
HILLSIDE, INC.,
INACTIVE CORPORATIONS, INC.,
KINGS ISLE RECREATION CORP.,
KINGS RIDGE GOLF CORPORATION,
KINGS RIDGE RECREATION CORPORATION,
KINGS WOOD DEVELOPMENT CORPORATION,
LENNAR ACQUISITION CORP. II,
LENNAR.COM, INC.,
LENNAR COMMUNITIES, INC.,
LENNAR COMMUNITIES DEVELOPMENT, INC.,
LENNAR CONSTRUCTION, INC.,
LENNAR FINANCIAL SERVICES, INC.,
LENNAR HOMES, INC.,
LENNAR HOMES OF ARIZONA, INC.,
LENNAR HOMES OF CALIFORNIA, INC.,
**LENNAR HOMES OF TEXAS LAND AND
CONSTRUCTION, LTD.,
**LENNAR HOMES OF TEXAS SALES AND
MARKETING, LTD.,
LENNAR LA PAZ LIMITED, INC.,
LENNAR LA PAZ, INC.,
LENNAR LAND PARTNERS SUB, INC.,
LENNAR LAND PARTNERS SUB II, INC.,
LENNAR MANAGEMENT, INC.,
LENNAR NEVADA, INC.,
LENNAR NORTHLAND I, INC.,
LENNAR NORTHLAND II, INC.,
LENNAR NORTHLAND III, INC.,
LENNAR NORTHLAND IV, INC.,
LENNAR NORTHLAND V, INC.,
LENNAR NORTHLAND VI, INC.,
LENNAR OCEANSIDE, LLC,
*LENNAR PACIFIC, INC.,
*LENNAR PACIFIC, L.P.,
*LENNAR PACIFIC PROPERTIES, INC.,
LENNAR REALTY, INC.,
LENNAR RENAISSANCE, INC.,
LENNAR SACRAMENTO, INC.,
LENNAR SALES CORP.,
LENNAR SAN JOSE HOLDINGS, INC.,
LENNAR SOUTHLAND I, INC.,
LENNAR SOUTHLAND II, INC.,
LENNAR SOUTHLAND III, INC.,
LENNAR SOUTHWEST HOLDING CORP.,
LENNAR TEXAS HOLDING COMPANY,
LENNAR TITLE SERVICES, INC.,
LONG POINT DEVELOPMENT CORPORATION,
LUCERNE GREENS, INC.,
LUCERNE MERGED CONDOMINIUMS, INC.,
M.A.P. BUILDERS, INC.,
M.A.P. VINEYARDS OF PLANTATION, INC.,
MARLBOROUGH DEVELOPMENT CORPORATION,
MIDLAND HOUSING INDUSTRIES CORP.,
MIDLAND INVESTMENT CORPORATION,
MISSION VIEJO HOLDINGS, INC.,
MISSION VIEJO 12S VENTURE, LP,
MONTEREY VILLAGE DEVELOPMENT CORP.,
QUALITY ROOF TRUSS COMPANY,
RANCHO SUMMIT, LLC,
REGENCY TITLE COMPANY,
RIVIERA LAND CORP.,
SANTA FE LAKES, L.P.,
SAVELL GULLEY DEVELOPMENT CORPORATION,
SILVER LAKES-GATEWAY CLUBHOUSE, INC.,
SLTC, INC.,
STRATEGIC HOLDINGS, INC.,
STRATEGIC TECHNOLOGIES, INC.,
STRATEGIC TECHNOLOGIES COMMUNICATIONS OF
CALIFORNIA, INC.,
SUPERIOR REALTY & MARKETING, INC.,
UNIVERSAL TITLE INSURORS, INC.,
U.S. HOME CORPORATION
(f/k/a LEN ACQUISITION CORPORATION),
W. B. HOMES, INC.,
WESTCHASE, INC.,
BRUSHMASTERS, INC.,
CANTERBURY CORPORATION,
COUNTRYPLACE GOLF COURSE, INC.,
E.M.J.V. CORP.,
HOMECRAFT CORPORATION,
IMPERIAL HOMES CORPORATION,
LUNDGREN BROS. CONSTRUCTION, INC.,
MID-COUNTY UTILITIES, INC.,
OCEANPOINTE DEVELOPMENT CORPORATION,
ORRIN THOMPSON CONSTRUCTION COMPANY,
ORRIN THOMPSON HOMES CORP.,
PAPARONE CONSTRUCTION CO.,
PRARIE LAKE CORPORATION,
RIVENHOME CORPORATION,
RUTENBERG HOMES, INC. (FL),
RUTENBERG HOMES, INC. (TX),
STONEY CORPORATION,
SUMMERWAY INVESTMENT CORP.,
U.S. HOME & DEVELOPMENT CORPORATION,
U.S. HOME OF ARIZONA CONSTRUCTION CO.,
U.S. HOME OF COLORADO REAL ESTATE, INC.,
U.S. HOME REALTY CORPORATION,
U.S. HOME REALTY, INC. (MD),
U.S. HOME REALTY, INC. (TX),
U.S.H. CORPORATION OF NEW YORK,
U.S. H. LOS PRADOS, INC.,
USH ACQUISITION CORP.,
USH EQUITY CORPORATION,
USH HOLDING, INC.,
USH MILLENNIUM VENTURES CORP.,
USH/MJR, INC.,
USH (WEST LAKE), INC.,
USH WOODBRIDGE, INC. and
WESTSTONE CORPORATION,
By: /s/ DAVID B. MCCAIN
-------------------------------------
Name: David B. McCain
Title: Vice President
- ---------------
* Executed by authorized agent.
** Executed by Lennar Texas Holding Company, as General Partner.
EXHIBIT A
GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note 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 Indenture, dated as of December 30, 1997
between Lennar Corporation and Bank One Trust Company, N.A. (the "Base
Indenture"), as supplemented by the Second Supplemental Indenture, dated as of
February 24, 1999 between Lennar Corporation and Bank One Trust Company, N.A.
(the "Second Supplemental Indenture"), as further supplemented by the Third
Supplemental Indenture dated as of May 3, 2000, among Lennar Corporation, the
Guarantors named therein and Bank One Trust Company, as trustee (the "Third
Supplemental Indenture"), 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 Two of the Third Supplemental Indenture and this Guarantee. This
Guarantee will become effective in accordance with Article Two of the Third
Supplemental Indenture upon execution of the Third 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 Base indenture, as supplemented by the Second
Supplemental Indenture and the Third Supplemental Indenture.
The obligations of the undersigned to the Holders of Notes and
to the Trustee pursuant to this Guarantee and the Third Supplemental Indenture
are expressly set forth in Article Two of the Third Supplemental Indenture and
reference is hereby made to the Third Supplemental Indenture for the precise
terms of the Guarantee and all of the other provisions of the Third Supplemental
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 Third Supplemental Indenture.
The undersigned acknowledges that this Guarantee shall be
subject to the TIA if and when the Third Supplemental Indenture is so subject,
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:
------------------------------
BCDC CORP.,
BOCA GREENS, INC.,
BOCA ISLES CLUB, INC.,
BOCA ISLES SOUTH CLUB, INC.,
BRAMALEA CALIFORNIA, INC.,
BRAMALEA CALIFORNIA PROPERTIES, INC.,
BRAMALEA CALIFORNIA REALTY, INC.,
CLODINE-BELLAIRE LP, INC.,
CLUB PEMBROKE ISLES, INC.,
DCA AT BANYAN TREE, INC.,
DCA AT NORTH LAUDERDALE, INC.,
DCA AT PEMBROKE POINTE, INC.,
DCA AT WIGGINS BAY, INC.,
DCA GENERAL CONTRACTORS, INC.,
DCA HOMES OF CENTRAL FLORIDA, INC.,
DCA NJ REALTY, INC.,
DCA OF BROWARD COUNTY, INC.,
DCA OF HIALEAH, INC.,
DCA OF LAKE WORTH, INC.,
DCA OF NEW JERSEY, INC.,
DEVCO LAND CORP.,
DYEING & FINISHING, INC.,
FIRST ATLANTIC BUILDING CORP.,
GREYSTONE CONSTRUCTION, INC.,
GREYSTONE HOMES, INC.,
GREYSTONE HOMES OF NEVADA, INC.,
GREYSTONE NEVADA, LLC,
HARRIS COUNTY LP, INC.,
HILLSIDE, INC.,
INACTIVE CORPORATIONS, INC.,
KINGS ISLE RECREATION CORP.,
KINGS RIDGE GOLF CORPORATION,
KINGS RIDGE RECREATION CORPORATION,
KINGS WOOD DEVELOPMENT CORPORATION,
LENNAR ACQUISITION CORP. II,
LENNAR.COM, INC.,
LENNAR COMMUNITIES, INC.,
LENNAR COMMUNITIES DEVELOPMENT, INC.,
LENNAR CONSTRUCTION, INC.,
LENNAR FINANCIAL SERVICES, INC.,
LENNAR HOMES, INC.,
LENNAR HOMES OF ARIZONA, INC.,
LENNAR HOMES OF CALIFORNIA, INC.,
**LENNAR HOMES OF TEXAS LAND AND
CONSTRUCTION, LTD.,
**LENNAR HOMES OF TEXAS SALES AND
MARKETING, LTD.,
LENNAR LA PAZ LIMITED, INC.,
LENNAR LA PAZ, INC.,
LENNAR LAND PARTNERS SUB, INC.,
LENNAR LAND PARTNERS SUB II, INC.,
LENNAR MANAGEMENT, INC.,
LENNAR NEVADA, INC.,
LENNAR NORTHLAND I, INC.,
LENNAR NORTHLAND II, INC.,
LENNAR NORTHLAND III, INC.,
LENNAR NORTHLAND IV, INC.,
LENNAR NORTHLAND V, INC.,
LENNAR NORTHLAND VI, INC.,
LENNAR OCEANSIDE, LLC,
*LENNAR PACIFIC, INC.,
*LENNAR PACIFIC, L.P.,
*LENNAR PACIFIC PROPERTIES, INC.,
LENNAR REALTY, INC.,
LENNAR RENAISSANCE, INC.,
LENNAR SACRAMENTO, INC.,
LENNAR SALES CORP.,
LENNAR SAN JOSE HOLDINGS, INC.,
LENNAR SOUTHLAND I, INC.,
LENNAR SOUTHLAND II, INC.,
LENNAR SOUTHLAND III, INC.,
LENNAR SOUTHWEST HOLDING CORP.,
LENNAR TEXAS HOLDING COMPANY,
LENNAR TITLE SERVICES, INC.,
LONG POINT DEVELOPMENT CORPORATION,
LUCERNE GREENS, INC.,
LUCERNE MERGED CONDOMINIUMS, INC.,
M.A.P. BUILDERS, INC.,
M.A.P. VINEYARDS OF PLANTATION, INC.,
MARLBOROUGH DEVELOPMENT CORPORATION,
MIDLAND HOUSING INDUSTRIES CORP.,
MIDLAND INVESTMENT CORPORATION,
MISSION VIEJO HOLDINGS, INC.,
MISSION VIEJO 12S VENTURE, LP,
MONTEREY VILLAGE DEVELOPMENT CORP.,
QUALITY ROOF TRUSS COMPANY,
RANCHO SUMMIT, LLC,
REGENCY TITLE COMPANY,
RIVIERA LAND CORP.,
SANTA FE LAKES, L.P.,
SAVELL GULLEY DEVELOPMENT CORPORATION,
SILVER LAKES-GATEWAY CLUBHOUSE, INC.,
SLTC, INC.,
STRATEGIC HOLDINGS, INC.,
STRATEGIC TECHNOLOGIES, INC.,
STRATEGIC TECHNOLOGIES COMMUNICATIONS
OF CALIFORNIA, INC.,
SUPERIOR REALTY & MARKETING, INC.,
UNIVERSAL TITLE INSURORS, INC.,
U.S. HOME CORPORATION
(f/k/a LEN ACQUISITION CORPORATION),
W. B. HOMES, INC.,
WESTCHASE, INC.,
BRUSHMASTERS, INC.,
CANTERBURY CORPORATION,
COUNTRYPLACE GOLF COURSE, INC.,
E.M.J.V. CORP.,
HOMECRAFT CORPORATION,
IMPERIAL HOMES CORPORATION,
LUNDGREN BROS. CONSTRUCTION, INC.,
MID-COUNTY UTILITIES, INC.,
OCEANPOINTE DEVELOPMENT CORPORATION,
ORRIN THOMPSON CONSTRUCTION COMPANY,
ORRIN THOMPSON HOMES CORP.,
PAPARONE CONSTRUCTION CO.,
PRARIE LAKE CORPORATION,
RIVENHOME CORPORATION,
RUTENBERG HOMES, INC. (FL),
RUTENBERG HOMES, INC. (TX),
STONEY CORPORATION,
SUMMERWAY INVESTMENT CORP.,
U.S. HOME & DEVELOPMENT CORPORATION,
U.S. HOME OF ARIZONA CONSTRUCTION CO.,
U.S. HOME OF COLORADO REAL ESTATE, INC.,
U.S. HOME REALTY CORPORATION,
U.S. HOME REALTY, INC. (MD),
U.S. HOME REALTY, INC. (TX),
U.S.H. CORPORATION OF NEW YORK,
U.S. H. LOS PRADOS, INC.,
USH ACQUISITION CORP.,
USH EQUITY CORPORATION,
USH HOLDING, INC.,
USH MILLENNIUM VENTURES CORP.,
USH/MJR, INC.,
USH (WEST LAKE), INC.,
USH WOODBRIDGE, INC. and
WESTSTONE CORPORATION,
as Guarantors
By: /s/ DAVID B. MCCAIN
-------------------------------------
Name: David B. McCain
Title: Vice President
- ---------------
* Executed by authorized agent.
** Executed by Lennar Texas Holding Company, as General Partner.