FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
First Amendment to Revolving Credit Agreement ("Amendment"), dated as
of January 31, 1995, by and among LENNAR CORPORATION, a corporation organized
and existing under the laws of the State of Delaware (the "Company"), the
Subsidiaries of the Company listed in Schedule I (said Subsidiaries, together
with the Company, hereinafter individually and collectively referred to as the
"Borrower") to the Agreement (as hereinafter defined), the lenders listed in
Schedule II to the Agreement (hereinafter such lenders, together with any
additional lenders as provided in Section 2.21 of the Agreement, are
collectively referred to as the "Lenders"), and THE FIRST NATIONAL BANK OF
CHICAGO, as Agent (the "Agent"), amending the Revolving Credit Agreement (the
"Agreement"), dated July 29, 1994, by and among the Borrower, the Lenders and
the Agent.
RECITAL
The Borrower has requested that the Lenders amend the Agreement, and
the Lenders are willing to make such amendment, all upon the terms and subject
to the conditions set forth herein.
AGREEMENT
In consideration of the foregoing and of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used in this Amendment and not
otherwise defined herein, shall have the meanings ascribed to them in the
Agreement.
2. MAXIMUM CREDIT FACILITIES.
(a) Section 2.01(c) of the Agreement is deleted in its entirety and
replaced with the following:
(c) Notwithstanding anything to the contrary contained in this
Agreement, the maximum principal amount of outstanding Advances shall
not at any time exceed $300,000,000.
(b) Section 2.21(a) of the Agreement is modified by replacing the
reference therein to $250,000,000" with $300,000,000".
3. CERTAIN DEFINED TERMS.
Section 1.01 of the Agreement is modified by adding each of the
following defined terms, each of which defined terms shall supersede such
defined term if set forth in the Agreement:
"APPLICABLE MARGIN", in the event that the Company or the Company's
senior unsecured long-term debt is rated without regard to credit
enhancement by both Standard & Poor's and Moody's, shall be determined
in accordance with the following table, such Applicable Margin to
remain in effect for each Interest Period (with respect to Fixed Rate
Loans) during all of which the applicable rating Level shall remain in
effect:
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
- -----------------------------------------------------------------------------------------------------------------------------
Credit If the Company or If the Company or If the Company or If the Company or All other ratings
Quality the Company's the Company's se- the Company's the Company's apply or no ratings
senior unsecured nior unsecured senior unsecured senior unsecured exist
long-term debt rating long-term debt long-term debt rating long-term debt
is equal to or better rating is equal to is equal to or better rating is equal to or
than BBB+ from or better than than BBB- from better than BB+
S&P or Baa1 from BBB from S&P to S&P or Baa3 from from S&P or Ba1
Moody's Baa2 from Moody's, but from Moody's, but
Moody's, but insufficient to insufficient to
insufficient to achieve Level II achieve Level III
achieve Level I
- -----------------------------------------------------------------------------------------------------------------------------
Applicable 0% per annum 0% per annum 0% per annum 0% per annum 0% per annum
Margin
For
Floating
Rate Loans
- -----------------------------------------------------------------------------------------------------------------------------
Applicable .40% per annum .50% per annum .75% per annum 1.00% per annum 1.25% per annum
Margin
For
Eurodollar
Loans
- -----------------------------------------------------------------------------------------------------------------------------
Applicable .40% per annum .50% per annum .75% per annum 1.00% per annum 1.25% per annum
Margin
For Fixed
CD Rate
Loans
- -----------------------------------------------------------------------------------------------------------------------------
-2-
Notwithstanding the foregoing, if such applicable rating Level by
Moody's is more than one Level different from the applicable rating
Level by Standard & Poor's, the Applicable Margin shall correspond to
that of one Level higher than the lower of such Levels (E.G., if
Moody's rating is Baa1 (Level I) and Standard & Poor's rating is BB+
(Level IV), the applicable rating Level would be Level II). If the
Company or the Company's senior unsecured long-term debt is rated
without regard to credit enhancement by either Standard & Poor's or
Moody's (but not both), the Applicable Margin for Eurodollar Loans and
Fixed CD Rate Loans shall be determined in accordance with the
foregoing table, but increased by .125% if Levels I, II, III or IV are
applicable and 0% if Level V is applicable. If the Company or the
Company's senior unsecured long-term debt is not rated without regard
to credit enhancement by either Moody's or Standard & Poor's, the
Applicable Margin for Eurodollar Loans and Fixed CD Rate Loans shall be
determined in accordance with the foregoing table as if Level V was
applicable. Borrower acknowledges that the Company is currently rated
BBB- by Standard & Poor's and unrated by Moody's; and, accordingly,
.875% per annum is currently the Applicable Margin for Fixed Rate
Loans. Any change in such ratings shall result in a change in the
Applicable Margin as of the beginning of the next succeeding applicable
Interest Period for Fixed Rate Loans, and Borrower shall notify Agent
of any such rate change within five days thereof. If, within sixty (60)
days following any anniversary of the Effective Date, the Company has
not delivered to Agent written confirmation by each such rating agency
of such agency's rating of the Company or the Company's senior
unsecured long-term debt as of such anniversary, then the Applicable
Margin shall be calculated retroactively from such anniversary as if
neither the Company nor such debt were rated by such agency.
-3-
"BORROWING BASE" means, from time to time, the sum of the following
amounts, all as reflected from time to time in accordance with United
States generally accepted accounting principles consistently applied in
the consolidated balance sheet of the Borrower: (i) 100% of Borrower's
unrestricted cash up to a maximum of $10,000,000 (with any excess cash
being excluded from the Borrowing Base); (ii) 100% of the Net Proceeds
due to Borrower at closing as a result of the consummation of the sale
of any Housing Unit, which Net Proceeds have been paid to the closing
agent handling such sale but which have not yet been received by
Borrower; PROVIDED, HOWEVER, that if, and to the extent that, such Net
Proceeds which are reported as outstanding on the last day of any
fiscal quarter of Borrower are not received by Borrower on or before
the tenth (10th) day following the end of any such fiscal quarter, such
Net Proceeds shall not be included in the Borrowing Base; (iii) 75% of
the Net Book Value of all Housing Units under Contract; (iv) 65% of the
Net Book Value of all Housing Units owned by Borrower (including,
without limitation, model Housing Units) that are not subject to a
contract for sale, PROVIDED that the amount determined pursuant to this
clause (iv) shall not exceed 30% of the Aggregate Commitment (with any
excess being excluded from the Borrowing Base); (v) the lower of (A)
100% of the Net Book Value of all Income Producing Properties (on an
asset-by-asset basis), or (B) six and one-half (6 1/2) times the Net
Operating Income for the four fiscal quarters immediately preceding the
date as of which Net Operating Income is to be determined, PROVIDED
that the amount determined pursuant to this clause (v) shall not exceed
30% of the Aggregate Commitment (with any excess being excluded from
the Borrowing Base); (vi) 50% of the Net Book Value of all
substantially improved land owned by the Borrower, PROVIDED that the
amount determined pursuant to this clause (vi) shall not exceed 25% of
the Aggregate Commitment (with any excess being excluded from the
Borrowing Base); and (vii) 50% of Borrower's Net Cash Invested,
PROVIDED, that the amount determined pursuant to this clause (vii)
shall not exceed the lesser of (X) 20% of the Aggregate Commitment, (Y)
$60,000,000 or (Z) 10% of consolidated shareholders' equity of the
Company and its Subsidiaries as of the end of the most recently
completed fiscal quarter next preceding the date as of which the
Borrowing Base is to be determined (with any excess being excluded from
the Borrowing Base); PROVIDED, HOWEVER, that notwithstanding anything
to the contrary provided herein, any asset which is encumbered by a
Lien
-4-
shall not be included in the calculation of the Borrowing Base pursuant
to clauses (i) - (vii) above and the Discontinued Assets shall also be
disregarded in computation of the Borrowing Base. For purposes of
clause (vi) above, "substantially improved land" shall mean land with
respect to which at least 80% of the standard improvements (including
zoning and platting, engineering design and permits, filling to grade,
main water distribution and sewage collection systems and drainage
system installation, but excluding sidewalks, landscaping and sodding,
decorative and privacy walls, recreation facilities, guardhouse and
street lights) have been completed. For purposes of clause (vii) above,
(A) "Net Cash Invested" shall mean with respect to any Pool (as
hereinafter defined) the aggregate amount of cash invested by the
Borrower in such Pool (but in no event more than $30,000,000 with
respect to each Pool) less the cumulative amount of distributions
received by the Borrower from such Pool, less Borrower's pro rata
portion of cumulative net losses, if any, of such Pool for the period
during which Borrower or an Unconsolidated Joint Venture Subsidiary was
a partner in the Pool, but without regard to the Borrower's equity in
cumulative undistributed net earnings, if any, of such Pool for the
period during which Borrower or an Unconsolidated Joint Venture
Subsidiary was a partner in the Pool, and (B) "Pools" shall mean
partnerships and joint ventures in which the Borrower has invested cash
and the business of which is limited to investing in distressed real
estate properties and/or mortgage loans, PROVIDED that Pools shall not
include any joint venture or partnership which has been in existence
for five or more years or which has not made distributions to its
venturers or partners for two (2) consecutive years.
"EFFECTIVE DATE" means January 31, 1995.
"TERMINATION DATE" means January 31, 2000, subject, however, to earlier
termination in whole of the Aggregate Commitment pursuant to the terms
of this Agreement.
-5-
"UNCONSOLIDATED JOINT VENTURE" shall mean a joint venture (whether in
the form of a corporation, a partnership or otherwise) (i) to which the
Borrower or an Unconsolidated Joint Venture Subsidiary is or becomes a
party (other than the tenancies in common listed in Schedule VII
annexed hereto), (ii) which Borrower is not required to consolidate in
its financial statements in accordance with United States generally
accepted accounting principles, and (iii) in which the Borrower has or
will have a total investment exceeding $25,000 or which has total
assets plus contingent liabilities exceeding $100,000. For the purposes
of this definition, the Borrower's investment in a joint venture shall
be deemed to include any Securities of the joint venture owned by the
Borrower, any loans, advances or accounts receivable by the Borrower
from the joint venture, any commitments, arrangement or other agreement
by the Borrower to provide funds or credit to the joint venture and the
Borrower's share of the undistributed profits of the joint venture.
"UNCONSOLIDATED JOINT VENTURE SUBSIDIARY" means a Subsidiary of the
Company which is a partner, shareholder or other equity owner in an
Unconsolidated Joint Venture, which is not a Borrower but all of the
issued and outstanding equity Securities of which Subsidiary are
pledged to the Lenders pursuant to Section 7.05.
4. COMMITMENT FEE AND REDUCTION OF COMMITMENTS. Section 2.06 of the
Agreement is deleted in its entirety and replaced with the following:
Section 2.06. COMMITMENT FEE AND REDUCTION OF COMMITMENTS. The Borrower
agrees to pay to the Agent for the account of each Lender a commitment
fee per annum on the daily unborrowed and unused portion of such
Lender's Commitment (I.E., after deducting from the Commitment of such
Lender the outstanding amount of all Loans made by such Lender) from
the Effective Date to and including the Termination Date, payable in
arrears on each Quarterly Payment Date thereafter and on the
Termination Date. Such commitment fee shall be determined on the first
day of each fiscal quarter in accordance with the following table, if
the Company or the Company's senior unsecured long-term debt is rated
without regard to credit enhancement by both Standard & Poor's and
Moody's, such fee to remain in effect throughout such quarter:
-6-
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
- -----------------------------------------------------------------------------------------------------------------------------
Credit If the Company or If the Company or If the Company or If the Company or All other ratings
Quality the Company's the Company's se- the Company's the Company's apply or no ratings
senior unsecured nior unsecured senior unsecured senior unsecured exist
long-term debt rating long-term debt long-term debt rating long-term debt
is equal to or better rating is equal to is equal to or better rating is equal to or
than BBB+ from or better than than BBB- from better than BB+
S&P or Baa1 from BBB from S&P or S&P or Baa3 from from S&P or Ba1
Moody's Baa2 from Moody's, but from Moody's, but
Moody's, but insufficient to insufficient to
insufficient to achieve Level II achieve Level III
achieve Level I
- -----------------------------------------------------------------------------------------------------------------------------
Commitment .15% .20% .25% .35% .375%
Fee
- -----------------------------------------------------------------------------------------------------------------------------
Notwithstanding the foregoing, if such applicable rating Level by
Moody's is more than one Level different from the applicable rating
Level by Standard & Poor's, the applicable commitment fee shall
correspond to that of one Level higher than the lower of such Levels.
If the Company or the Company's senior unsecured long-term debt is
rated without regard to credit enhancement by either Standard & Poor's
or Moody's (but not both), then the applicable commitment fee shall be
determined in accordance with the foregoing table, but increased by
.05% if Levels I, II, III or IV are applicable and by 0% if Level V is
applicable. If the Company or the Company's senior unsecured long-term
debt is not rated without regard to credit enhancement by either
Standard & Poor's or Moody's, the applicable commitment fee shall be
determined in accordance with the foregoing table as if Level V was
applicable. Borrower acknowledges that the Company is currently rated
BBB- by Standard & Poor's and unrated by Moody's; and, accordingly,
.30% per annum is currently the applicable commitment fee. If, within
sixty (60) days following any anniversary of the Effective Date, the
Company has not delivered to the Agent written confirmation by each
such rating agency of such agency's rating of the Company or the
Company's senior unsecured long-term debt as of such anniversary, then
the commitment fee shall be calculated retroactively from such
anniversary as if such debt were not rated by such agency. The Borrower
may permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in integral multiples of $1,000,000, upon at
least three Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction, PROVIDED,
-7-
HOWEVER, that the amount of the Aggregate Commitment may not be reduced
below the aggregate principal amount of the outstanding Advances. All
accrued commitment fees under this Section 2.06 shall be payable on the
effective date of any termination of the obligations of the Lenders to
make Loans hereunder. The fees payable under this Section 2.06, once
paid, shall not be refundable for any reason.
5. UP FRONT FEE. Section 2.07 of the Agreement is deleted in its
entirety and replaced with the following:
Section 2.07. UP FRONT FEE. On the Effective Date, the Borrower agrees
to pay to the Agent for the account of each Lender an up front fee
equal to .075% of the Aggregate Commitment as of the Effective Date.
6. FINANCIAL STATEMENTS. Section 4.03 of the Agreement is deleted in
its entirety and replaced with the following:
Section 4.03. FINANCIAL STATEMENTS. The Borrower heretofore has
provided to the Lenders (i) the consolidated balance sheet of the
Company and its Subsidiaries as of November 30, 1993, and the related
consolidated statements of earnings, stockholders' equity and cash
flows for the 12-month period ended on that date, audited and reported
upon by KPMG Peat Marwick, independent certified public accountants
(the "Audited Financial Statements"), and (ii) a consolidated balance
sheet of the Borrower as of August 31, 1994 and a consolidated
statement of earnings of the Borrower for the nine-month period ended
on that date, both unaudited, but certified to be true and accurate
(subject to normal year-end audit adjustments) by the President and the
chief financial officer of the Company (the "Unaudited Financial
Statements"). Those financial statements and reports (subject, in the
case of the Unaudited Financial Statements, to normal year-end audit
adjustments), and the related notes and schedules (if any), (a) were
prepared in accordance with United States generally accepted accounting
principles consistently applied throughout the respective periods
covered thereby, (b) present fairly the consolidated financial
condition of the Company and its Subsidiaries as of the respective
dates thereof, (c) show all material liabilities, direct or contingent,
of the Company and its Subsidiaries as of those dates (including,
without limitation, liabilities for taxes and material commitments),
and (d)
-8-
present fairly the consolidated results of operations of the Company
and its Subsidiaries for the respective periods covered thereby.
7. ACCOUNTS AND REPORTS. Section 6.04 of the Agreement is amended by
deleting the period at the end of paragraph (p) thereof and adding a semicolon
thereto and adding the following to the end thereof:
(q) as soon available and in any event within 120 days after the end of
each fiscal year of each Pool (as defined in the definition of
"Borrowing Base"), a balance sheet of such Pool as of the end of such
fiscal year and the related statements of earnings, partners' equity
and cash flows for such fiscal year, all with accompanying notes and
schedules, prepared in accordance with United States generally accepted
accounting principles consistently applied and either (i) audited and
reported on by an independent firm of certified public accountants of
national standing or (ii) unaudited but certified to be true and
accurate by the chief financial officer of the Company to the best of
his knowledge;
(r) as soon as available and in any event within 60 days after the end
of each of the first three fiscal quarters and within 120 days after
the end of the fourth fiscal quarter of each fiscal year of each Pool,
a balance sheet of each such Pool as of the end of such quarter and the
related statements of earnings and partners' equity of each such Pool
for the period from the beginning of the fiscal year to the end of such
quarter, certified to be true and accurate, subject to normal year-end
audit adjustments, by the chief financial officer of the Company to the
best of his knowledge; and
(s) prior to or contemporaneously with the making of any investment in
any Unconsolidated Joint Venture, copies of each proposed shareholders'
agreement, certificate or articles of incorporation, partnership
agreement, joint venture agreement or similar organizational instrument
or agreement, relating to the formation of each Unconsolidated Joint
Venture, and each material restatement, modification, amendment or
supplement thereto.
8. FINANCING; NEW INVESTMENTS. The last sentence of Section 6.07 of the
Agreement is amended in its entirety and replaced with the following:
As used in this Section 6.07, the term "Significant Subsidiary" means a
-9-
Subsidiary of one or more entities comprising the Borrower in which the
Borrower makes investments (whether through the purchase of capital
stock or instruments evidencing debt, advances or loans to such
Subsidiary or by the guaranty of indebtedness of such Subsidiary) in a
cumulative amount in excess of $1,000,000 but shall not include any
Subsidiary all of the issued and outstanding equity Securities of which
are pledged to the Lenders pursuant to Section 7.05 hereof.
9. TANGIBLE NET WORTH. Section 7.01 of the Agreement is deleted in its
entirety and replaced with the following:
Section 7.01. TANGIBLE NET WORTH. Permit the consolidated Tangible Net
Worth of (i) the Borrower and (ii) each Subsidiary whose equity
Securities are pledged to the Lenders pursuant to the Pledge Agreement
referred to in Section 7.05 hereof at any time to be less than the sum
of (a) $425,000,000, and (b) an amount equal to 50% of the result
obtained by subtracting the after tax net income of the Mortgage
Banking Subsidiaries, the Limited Purpose Finance Subsidiaries, STI and
TIC from the aggregate net income of the Company and its Subsidiaries,
for each fiscal quarter of the Company ending after August 31, 1994 for
which the Company and its Subsidiaries, taken as a whole, had net
income, and (c) the aggregate net proceeds received by the Borrower
after August 31, 1994 from the sale of any of its equity Securities.
10. GUARANTIES. Clause (d) of Section 7.03 of the Agreement is deleted
in its entirety and replaced with the following:
(d) guaranties of liabilities incurred by Unconsolidated Joint Ventures
to which the Borrower or an Unconsolidated Joint Venture Subsidiary is
a party, PROVIDED that all such guaranties outstanding at any one time,
when aggregated with all then outstanding investments in and loans or
advances to Unconsolidated Joint Ventures of the type referred to in
clause (i) of Section 7.05 hereof, do not exceed $50,000,000 for any
single Unconsolidated Joint Venture or $150,000,000 for all
Unconsolidated Joint Ventures.
11. LIMITATION ON INVESTMENTS. (a) Clause (i) of Section 7.05 of the
Agreement is deleted in its entirety and replaced with the following:
-10-
(i) investments in or loans or advances to Unconsolidated Joint
Ventures to which the Borrower or a Subsidiary is a party, PROVIDED
that (A) all such investments, loans and advances outstanding at any
time, when aggregated with all then outstanding guaranties of the
obligations of Unconsolidated Joint Ventures of the type referred to in
clause (d) of Section 7.03 hereof do not exceed $50,000,000 for any
single Unconsolidated Joint Venture or $150,000,000 in the aggregate
for all Unconsolidated Joint Ventures, and (B) with respect to
investments, loans and advances by each Subsidiary which is not a
Borrower, all of the issued and outstanding equity Securities of such
Subsidiary shall have been pledged to the Agent pursuant to the terms
and provisions of a Pledge Agreement, which is in form and substance
satisfactory to the Required Lenders in their sole discretion, and such
pledge shall not be prohibited by, or result in a breach or violation
of, any agreement, indenture or other instrument to which the Company
or any Subsidiary is a party or is bound;
(b) The amendment set forth in paragraph (a) of this Section
11 shall be effective on and after July 29, 1994, as if originally included in
the Agreement on such date, and shall continue in effect from and after the
Effective Date; PROVIDED, HOWEVER, that notwithstanding the forgoing and the
provisions of paragraph (a) of this Section 11, if the Company and the Required
Lenders shall not have agreed upon the form, terms and provisions of a Pledge
Agreement relating to the pledge of all of the issued and outstanding equity
Securities of the following Subsidiaries, to wit: Lennar Central Holdings, Inc.,
Lennar Gotham Holdings, Inc., Lennar Northeast Holdings, Inc., Lennar Florida
Holdings, Inc. and Lennar Metro Holdings, Inc., within 30 days after the
Effective Date, the amendment effected by this Section 11 shall be terminated
effective on such 30th day and shall not be in effect thereafter.
12. LIMITATION ON UNSECURED DEBT. Section 7.10 of the Agreement is
deleted in its entirety and replaced with the following:
Section 7.10. LIMITATION ON UNSECURED DEBT. At any time, permit the
aggregate outstanding amount of the sum of (i) all outstanding
Indebtedness under the Notes plus (ii) all other unsecured Indebtedness
of the Borrower in excess of $20,000,000 to exceed the Borrowing Base
at such time.
-11-
13. LIENS AND ENCUMBRANCES. The following is inserted after Section
7.15 of the Agreement:
Section 7.16. LIENS AND ENCUMBRANCES. Agree with any third party not to
create, assume or suffer to exist any Lien securing a charge or
obligation, on or of any of its property, real or personal, whether now
owned or hereafter acquired.
14. ASSIGNMENTS.
(a) Section 12.01 of the Agreement (SUCCESSORS AND PERMITTED
ASSIGNS) is amended by adding a new sentence at the end thereof to read as
follows:
A Lender may not assign less than the lesser of its Commitment or
$10,000,000.
(b) Section 12.03(b) (EFFECT; EFFECTIVE DATE) of the Agreement is
amended by replacing the reference therein to "$2,500" with "$4,000".
15. JOINDER AND ASSUMPTION.
(a) ADDITIONAL SUBSIDIARY BORROWERS. Each Subsidiary listed on
Schedule I to this Amendment which is not listed on Schedule I to the Agreement
hereby joins in the Agreement as one of the corporations constituting the
Borrower and hereby assumes all the obligations of the Borrower thereunder,
jointly and severally with the Company and all other Subsidiaries constituting
the Borrower.
(b) ADDITIONAL LENDERS. Each of the banks whose name appears on a
signature page to this Amendment and which is not a party to the Agreement as
originally executed on July 29, 1994, is hereby admitted as an additional Lender
under the Agreement as provided in Section 2.21 of the Agreement, and each such
bank agrees, on the terms and conditions set forth in the Agreement, to make
Loans to the Borrower from time to time in amounts not to exceed, in the
aggregate at any one time outstanding, the amount of the Commitment set forth
next to the name of such bank on such signature page. Contemporaneously
herewith, the Borrower is executing and delivering to each such additional
Lender a Note in the principal amount of its Commitment.
-12-
(c) ADDITIONAL COMMITMENTS. If, and to the extent that, any
existing Lender is increasing the amount of its Commitment, such increased
Commitment is reflected in the Commitment set forth next to the name of such
Lender on a signature page to this Amendment. Contemporaneously herewith, the
Borrower is executing and delivering to each such Lender a Note in the principal
amount of its increased Commitment, which Note is to be in exchange for, and
cancellation of, the Note presently held by such Lender.
16. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
when the Agent shall have received counterparts of this Amendment executed by
the Borrower and each of the Lenders and each of the documents specified in
subsections (a) - (h) below (with all documents required below, except as
otherwise specified, to be dated the date of receipt thereof by the Agent, which
date shall be the same for all such documents, and each of such documents to be
in form and substance satisfactory to the Agent), and the conditions specified
in subsection (i) below shall have been satisfied:
(a) The favorable written opinion by Mershon, Sawyer, Johnston,
Dunwody & Cole, counsel for the Borrower, dated the Effective Date, addressed to
the Lenders and in form and substance satisfactory to the Agent, (i) confirming
the accuracy of the representations and warranties set forth in Sections 4.01
(excluding clause (ii) thereof, and limited, in the case of clause (iii)
thereof, to the jurisdictions listed under the heading "Where Qualified" in
Schedule VI to the Agreement), 4.02, 4.06, 4.11, 4.12 and the second sentence of
Section 4.08 of the Agreement (which opinion, as to the representations set
forth in clauses (ii)(b), (iii) and (iv) of Section 4.02, Sections 4.06, 4.11,
4.12 and the second sentence of Section 4.08 of the Agreement, may be to the
best knowledge of such counsel, and may in its entirety be limited to Florida,
Arizona, Delaware, Texas and United States federal law); and (ii) to the effect
that this Amendment has been duly authorized, executed and delivered by the
Borrower. Such counsel may rely, in its opinion, on the opinions of special
counsel to the Borrower referred to in subsection (b) below, as to matters of
law of the State of Illinois, and on the opinion of Fennemore, Craig of Phoenix,
Arizona as to matters of law of the State of Arizona, and the opinion of Arter &
Hadden as to matters of law of the State of Texas. The Borrower hereby instructs
its counsel to prepare its opinion and deliver it to Lenders for their benefit,
and such opinion shall contain a statement to such effect.
(b) The favorable written opinion of Rudnick & Wolfe, special
counsel
-13-
to the Borrower, dated the Effective Date, that (i) no authorization, consent,
approval, license or exemption of, or filing or registration with or other
action by any Illinois, United States federal or Delaware governmental
department, commission, board, bureau, regulatory body, agency or
instrumentality or to the best knowledge of such counsel, any court is or will
be necessary for the execution, delivery and performance by the Borrower of this
Amendment and (ii) this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, except as
the rights and remedies of the Lenders hereunder may be limited by (A)
applicable bankruptcy, reorganization, insolvency and other laws affecting
creditors' rights generally from time to time in effect, (B) the exercise of the
discretionary powers of the court before which any proceeding seeking equitable
remedies (including, without limitation, specific performance and injunctive
relief) may be brought, and (C) such other qualifications expressed in the
opinion provided that such qualifications are acceptable to Agent. Such counsel
may rely on the opinion of counsel to the Borrower delivered pursuant to
subsection (a), above, relating to the representations set forth in Sections
4.01 and 4.02 of the Agreement. The Borrower hereby instructs its special
counsel to prepare its opinion and deliver it to Lenders for their benefit, and
such opinion shall contain a statement to such effect.
(c) The favorable written opinion of Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A., special counsel to the Agent and the Lenders, dated
the Effective Date, addressed to the Lenders to the effect that: while it has
not independently considered the matters covered by the opinions provided
pursuant to subsections (a) and (b) above, to the extent necessary to enable it
to express the conclusions stated therein, those opinions of counsel and the
other documents provided pursuant to this Section 16 are substantially
responsive to the requirements of this Amendment.
(d) The following supporting documents with respect to each
Borrower: (i) a copy of its certificate of incorporation, certified as of a date
reasonably close to the Effective Date to be a true and accurate copy by the
Secretary of State of its state of incorporation, or a certificate of its
Secretary or Assistant Secretary to the effect that there have been no
amendments to its certificate of incorporation since July 29, 1994; (ii) a
certificate of the Secretary of State of its state of incorporation, dated as of
a date reasonably close to the Effective Date, as to its existence and (if
available) good standing; (iii) a certificate of the Secretary of State of each
jurisdiction, other than its state of incorporation, in which it does business,
as to its qualification as a foreign corporation, dated as of a date reasonably
close to the Effective Date; (iv) a copy of its
-14-
by-laws, certified by its Secretary or Assistant Secretary to be a true and
accurate copy of its by-laws in effect on the Effective Date, or a certificate
of its Secretary or Assistant Secretary to the effect that there have been no
amendments thereto since July 29, 1994; (v) a certificate of its Secretary or
Assistant Secretary, dated the Effective Date, as to the incumbency and
signatures of its officers who have executed any documents in connection with
the transactions contemplated by this Amendment; (vi) a copy of resolutions of
its Board of Directors or the Executive Committee of its Board of Directors,
certified by its Secretary or Assistant Secretary to be a true and accurate copy
of resolutions duly adopted by such Board of Directors or Executive Committee
that are in full force and effect on the Effective Date, authorizing the
execution and delivery by it of this Amendment, and the other Loan Documents and
the performance by it of all its obligations thereunder; and (vii) such
additional supporting documents and other information with respect to its
operations and affairs as the Agent may reasonably request.
(e) A certificate signed by a duly authorized officer of each
Borrower stating that: (i) the representations and warranties of the Borrower
contained in Article IV of the Agreement and in Section 6 of this Amendment are
correct and accurate on and as of the Effective Date as though made on and as of
that date and (ii) no event has occurred and is continuing which constitutes an
Event of Default or Unmatured Default under the Agreement.
(f) A certificate signed by the President or Chief Financial
Officer of the Company that attests to the existence and adequacy of, and
summarizes, the property, casualty, and liability insurance programs carried by
the Borrower and that has been furnished by the Borrower to the Agent and the
Lenders, is complete and accurate. This summary includes the insurer's or
insurers' name(s), policy number(s), expiration date(s), amount(s) of coverage,
type(s) of coverage, exclusion(s), and deductibles. This summary also includes
similar information, and describes any reserves, relating to any self-insurance
program that is in effect.
(g) A new Note, substantially in the form of EXHIBIT A annexed to
this Amendment, issued to each current Lender in replacement of such Lender's
Note and for a principal amount equal to such Lender's Commitment.
(h) Such other documents as any Lender or its counsel may
reasonably request.
-15-
(i) There shall not have occurred any changes in the consolidated
financial condition or results of operations of the Borrower from that reflected
in the financial statements dated November 30, 1993 which has or reasonably
could be expected to have, in the judgment of the Required Lenders, a Material
Adverse Effect on the Borrower's operations, taken as a whole.
17. LOCATION OF EXECUTION. This Amendment has been executed and
delivered to the Agent in Atlanta, Georgia. The Borrower reaffirms its
obligation to reimburse and indemnify the Lenders for any documentary stamp tax
or other taxes which may be imposed upon the Lenders in respect of the Agreement
or any Loan Documents.
18. NO OTHER MODIFICATIONS. Except as expressly amended or modified by
the terms hereof, the Agreement shall remain in full force and effect. This
Amendment shall not affect, modify or diminish the obligations of Borrower which
have accrued prior to the Effective Date including, but not limited to,
obligations to pay commitment fees and interest at the levels and rates as in
effect prior to the Effective Date.
19. REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The Borrower
hereby certifies that the representations and warranties contained in the
Agreement continue to be true and correct and that no Event of Default or
Unmatured Default has occurred.
20. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Revolving Credit Agreement to be duly executed, sealed and delivered the day
and year first above written.
BORROWER:
LENNAR CORPORATION AND EACH OF THE
SUBSIDIARIES LISTED ON SCHEDULE I OTHER THAN ATLANTIC
HOLDINGS, INC.
-16-
By: /s/ ALLAN J. PEKOR
------------------------------------------------
Allan J. Pekor as Vice President of each of such
corporations
Attest: /s/ MORRIS J. WATSKY
--------------------------------------------
Morris J. Watsky as Assistant Secretary of
each of such corporations
ATLANTIC HOLDINGS, INC.
By: /s/ ALLAN J. PEKOR
------------------------------------------------
Allan J. Pekor, authorized signatory
Attest: /s/ LORY SMITH
--------------------------------------------
Lori Smith, Assistant Secretary
Address:
Lennar Corporation
700 Northwest 107th Avenue
Miami, Florida 33172
Attention: Leonard Miller, President
COMMITMENTS: LENDERS:
$40,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ JAMES C. ROZEK
-------------------------------------------------
James C. Rozek, Vice President
-17-
Address:
The First National Bank of Chicago
One First National Plaza
14th Floor, Suite 0151
Chicago, Illinois 60670-0151
Attention: James C. Rozek, Vice President
with a copy to:
The First National Bank of Chicago
One First National Plaza
Suite 0801
Chicago, Illinois 60670-0801
Attention: Law Department
$35,000,000 THE FIRST NATIONAL BANK OF BOSTON
By: /s/ LINDA CARTER
-------------------------------------------------
Address:
400 Perimeter Center Terrace
Suite 745
Atlanta, Georgia 30346
Attention: Linda Carter, Vice President
-18-
$35,000,000 CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ DAVID M. CAWRSE
-------------------------------------------------
Address:
Suite 1700
235 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Pascal Seris, Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ DAVID M. CAWRSE
-------------------------------------------------
Address:
c/o Credit Lyonnais Atlanta Agency
Suite 1700
235 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Pascal Seris, Vice President
-19-
$5,000,000 INTERCONTINENTAL BANK
By: /s/ KAREN B. GILMORE
-------------------------------------------------
Address:
6th Floor
200 S.E. First Street
Miami, Florida 33131
Attention: Karen B. Gilmore, Senior Vice President
$35,000,000 COMERICA BANK
By: /s/ MICHEL KRZYSTOWCZYK
-------------------------------------------------
Address:
One Detroit Center
500 Woodward Avenue, 9th Floor
Detroit, Michigan 48267
Attention: Michael Krzystowczyk, Vice President
$35,000,000 NATIONSBANK OF FLORIDA, N.A.
By: /s/ DESPINA Z. SIBLEY
-------------------------------------------------
Address:
150 S.E. Third Avenue, Room 524
Miami, Florida 33131
Attention: Despina Z. Sibley, Vice President
-20-
$15,000,000 THE FUJI BANK, LIMITED
NEW YORK BRANCH
By: /s/ KATSUNORI NOZAWA
-------------------------------------------------
Norimasa Kuroda, Joint General Manager
Address:
Two World Trade Center, 79th Floor
New York, New York 10048
Attention: Vincent Ingato, Vice President
$20,000,000 BARNETT BANK OF SOUTH FLORIDA, N.A.
By: /s/ CLAY F. WILSON
-------------------------------------------------
Address:
701 Brickell Avenue, 6th Floor
Miami, Florida 33131
Attention: Clay F. Wilson, Vice President
-21-
$25,000,000 NBD BANK
By: /s/ RICHARD J. JOHNSEN
-------------------------------------------------
Address:
Financial Services Division
611 Woodward Avenue
Detroit, Michigan 48226-3497
Attention: Pat Power, Second Vice President
$30,000,000 BANK OF AMERICA ILLINOIS
By: /s/ MARK LARIVIERE
-------------------------------------------------
Address:
231 S. LaSalle, 15th Floor
Chicago, Illinois 60697
Attention: Mark Lariviere, Vice President
-22-