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Exhibit 4.(e)
LENNAR CORPORATION,
Issuer,
THE GUARANTORS NAMED HEREIN
and
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as successor to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
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Fourth 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 Zero Coupon Senior Convertible Debentures Due 2018
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FOURTH 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, National Association, 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 First
Supplemental Indenture to the Base Indenture, dated as of July 29, 1998 (the
"First Supplemental Indenture"), governing the Company's Zero Coupon Senior
Convertible Debentures Due 2018 (the "Debentures"); and
WHEREAS, the Company and the Trustee are entering into this
Supplemental Indenture in order to (1) provide the Debentures with the benefits
of the Guarantees (as defined below) and (2) recognize that the Debentures 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, National Association, 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, National Association, the
Subsidiary Pledge Agreement, dated May 3, 2000, between the Pledgors named
therein and Bank One, National Association, and the Collateral Trust Agreement,
dated May 3, 2000, between the Company and Bank One, National Association.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debentures 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 Debentures, 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
Debentures.
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,
National Association, 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 Debentures 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 Debentures pursuant to the
provisions of this Supplemental Indenture.
"Holder" means the Person in whose name a Debenture is registered in
the books of the Registrar for the Debentures.
"Indenture" means the Base Indenture together with the First
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, National Association, as
Trustee and the Subsidiary Pledge Agreement, dated as of May 3, 2000, by and
between the Pledgors named therein and Bank One, National Association, as
Trustee.
ARTICLE TWO
GUARANTEE OF DEBENTURES
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 Debenture authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
that: (a) all amounts due with respect to the Debentures 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 Debentures relating thereto,
by acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Debentures 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 Debentures 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 Debentures, 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 Debentures shall constitute an event of default under this Guarantee, and
shall entitle the Holders of Debentures 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 Debentures or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Debentures with
respect to any provisions of the Debentures 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
Debenture, 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 Debentures,
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 Debentures 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 First 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 First
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 Debenture or Debentures.
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 Debenture on which such
Guarantee is endorsed or at any time thereafter, such Guarantor's Guarantee of
such Debenture shall be valid nevertheless.
The delivery of any Debenture 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 Debentures and under
this Article Two.
Nothing contained in the Indenture, this Supplemental
Indenture or in any of the Debentures 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 Debentures
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 Debentures 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 Debentures under the Debentures,
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 Debentures 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 Debentures 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 Debentures, 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 Debentures, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from, any of
the Debentures, this Supplemental Indenture or the Indenture, including, without
limitation, any increase or decrease in any amount due with respect to any of
the Debentures;
(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 Debentures 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 Debentures 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 Debentures;
(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 Debentures 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 Debentures, 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 Debentures 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 Debentures 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 Debentures 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 Debentures 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 DEBENTURES
SECTION 3.01. Pledges of Additional Security.
In order for the Company to satisfy its obligations under Section 4.01 of the
First 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 Debentures on an equal and
ratable basis with the Company's obligations under the Credit Agreement and the
Company's 7 5/8% Senior Notes Due 2009.
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 Debentures is inconsistent with any provision of the Indenture,
the provision of this Supplemental Indenture shall control with regard to the
Debentures.
SECTION 4.03. Governing Law. This Supplemental Indenture and the
Debentures 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 Debentures,
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 Debentures 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,
NATIONAL ASSOCIATION
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
Debenture the cash payments in United States Dollars of any amounts due with
respect to the Debentures 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, National Association (the
"Base Indenture"), as supplemented by the First Supplemental Indenture, dated as
of July 29, 1998 between Lennar Corporation and Bank One Trust Company, National
Association (the "First Supplemental Indenture"), as further supplemented by the
Fourth Supplemental Indenture dated as of May 3, 2000, among Lennar Corporation,
the Guarantors named therein and Bank One Trust Company, as trustee (the "Fourth
Supplemental Indenture"), or the Debentures, to the Holder of this Debenture and
the Trustee, all in accordance with and subject to the terms and limitations of
this Debenture, Article Two of the Fourth Supplemental Indenture and this
Guarantee. This Guarantee will become effective in accordance with Article Two
of the Fourth Supplemental Indenture upon execution of the Fourth 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 Debenture.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Base indenture, as supplemented by the First
Supplemental Indenture and the Fourth Supplemental Indenture.
The obligations of the undersigned to the Holders of
Debentures and to the Trustee pursuant to this Guarantee and the Fourth
Supplemental Indenture are expressly set forth in Article Two of the Fourth
Supplemental Indenture and reference is hereby made to the Fourth Supplemental
Indenture for the precise terms of the Guarantee and all of the other provisions
of the Fourth 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 Fourth Supplemental Indenture.
The undersigned acknowledges that this Guarantee shall be
subject to the TIA if and when the Fourth 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.