SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
Amendment to Revolving Credit Agreement ("Amendment"), dated as of
April 6, 1995 (the "Amendment Date"), 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 Credit Agreement (as
hereinafter defined), THE LENDERS LISTED IN SCHEDULE II TO THE CREDIT AGREEMENT
(hereinafter such lenders, together with any additional lenders as provided in
Section 2.21 of the Credit Agreement, are collectively referred to as the
"Lenders"), and THE FIRST NATIONAL BANK OF CHICAGO, as Agent, amending the
Revolving Credit Agreement, dated July 29, 1994, by and among the Borrower, the
Lenders and the Agent, as amended by First Amendment to Revolving Credit
Agreement, dated as of January 31, 1995, among such parties (as so amended, the
"Credit Agreement").
RECITAL
The Borrower has requested that the Lenders amend the Credit 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 Credit
Agreement.
2. MAXIMUM CREDIT FACILITIES.
(a) The Recital on page 1 of the Credit Agreement is deleted in its
entirety and replaced with the following:
The Borrower desires to obtain from the Lenders and the Lenders are
willing to provide to the Borrower revolving credit loans in an
aggregate principal amount outstanding from time to time not exceeding
$310,000,000, upon the terms and subject to the conditions hereinafter
set forth.
(b) Section 2.01(c) of the Credit 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 $310,000,000.
(c) Section 2.21(a) of the Credit Agreement is modified by replacing
the reference therein to "$300,000,000" with "$310,000,000".
(d) The Commitment set forth alongside the name of each Lender on
the signature page of this Amendment bearing the name of such Lender shall
reflect the Commitment of such Lender under the Credit Agreement.
3. 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 Credit
Agreement hereby joins in the Credit 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 (a "New Lender") whose
name appears on a signature page to this Amendment and which is not a party to
the Credit Agreement is hereby admitted as an additional Lender under the Credit
Agreement as provided in Section 2.21 of the Credit Agreement, and each such New
Lender agrees, on the terms and conditions set forth in the Credit Agreement, as
amended hereby, 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 New Lender on its signature page
to this Amendment. Contemporaneously herewith, the Borrower is executing and
delivering to each New Lender a Note (each, a "Note") in the principal amount of
its Commitment. Each New Lender and the Agent hereby acknowledge that the form
and substance of such Note is acceptable. Notwithstanding the issuance of a Note
for the entire principal amount of a New Lender's Commitment, each New Lender
hereby agrees to fund its Pro Rata Share of all Loans outstanding on the
Amendment Date as follows: On the Amendment Date, each New Lender is funding its
Pro Rata Share of all Floating Rate Loans which are outstanding on the Amendment
Date ("Amendment Date Floating Rate Loans"); subsequent to the Amendment Date
each New Bank will fund its Pro Rata Share of each Eurodollar Loan outstanding
on the Amendment Date, with such funding to take place on each date that a
Eurodollar Interest Period expires with respect to such Eurodollar Loan. For
purposes of determining a New Lender's Pro Rata Share, the Commitment of such
New Lender shall be deemed at all times equal to its total Commitment as
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specified alongside its name on its signature page of this Amendment; PROVIDED,
HOWEVER, that solely for purposes of determining a New Lender's entitlement at
any time to the commitment fee pursuant to Section 2.06 of the Credit Agreement,
"Commitment" shall mean at such time the amount, if any, by which (i) the New
Lender's total Commitment exceeds (ii) the aggregate amount of the then
outstanding Loans actually advanced by the New Lender, until such time as the
New Lender shall have funded its Pro Rata Share of all outstanding Loans. To the
extent that the penultimate sentence of Section 2.21(b) of the Credit Agreement
is inconsistent with the provisions of this section, this section shall control.
(c) DELETION OF SUBSIDIARY BORROWER. LGP II Holdings, Inc. is
removed as of January 31, 1995 from Schedule I and shall not be a Borrower. Such
corporation is deemed to be an Unconsolidated Joint Venture Subsidiary as of
such date.
4. 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) - (f) 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 (g) below shall have been satisfied:
(a) The favorable written opinion by Mershon, Sawyer, Johnston,
Dunwody & Cole, counsel for the Borrower, dated the Amendment 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 Credit Agreement), 4.02, 4.06, 4.11, 4.12 and the second
sentence of Section 4.08 of the Credit 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 Credit
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
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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 to the Borrower, dated the Amendment 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 Credit 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 Amendment 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 4 are substantially responsive
to the requirements of this Amendment.
(d) The following supporting documents with respect to each
Borrower: (i) a certificate of its Secretary or Assistant Secretary to the
effect that there have been no amendments to its certificate of incorporation
since January 31, 1995; (ii) a certificate of the Secretary of State of its
state of incorporation, dated as of a date reasonably close to the Amendment
Date, as to its existence and (if available) good standing; (iii) a
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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 Amendment Date;
(iv) a certificate of its Secretary or Assistant Secretary to the effect that
there have been no amendments thereto since January 31, 1995; (v) a certificate
of its Secretary or Assistant Secretary, dated the Amendment 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 Amendment 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 Credit Agreement are correct and accurate on and
as of the Amendment 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 Credit Agreement.
(f) Such other documents as any Lender or its counsel may reasonably
request.
(g) 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, 1994 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.
5. 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 Credit
Agreement or any Loan Documents.
6. NO OTHER MODIFICATIONS. Except as expressly amended or modified by
the terms hereof, the Credit Agreement shall remain in full force and effect.
This Amendment shall not affect, modify or
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diminish the obligations of Borrower which have accrued prior to the Amendment
Date including, but not limited to, obligations to pay commitment fees and
interest at the levels and rates as in effect prior to the Amendment Date.
7. REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The Borrower hereby
certifies that the representations and warranties contained in the Credit
Agreement continue to be true and correct and that no Event of Default or
Unmatured Default has occurred.
8. 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 Second
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.
By: /s/ ALLAN J. PEKOR
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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/ LORI SMITH
--------------------------------------
Lori Smith, Assistant Secretary
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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
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James C. Rozek, Vice President
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
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Address:
400 Perimeter Center Terrace
Suite 745
Atlanta, Georgia 30346
Attention: Linda Carter, Vice President
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$35,000,000 CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ DAVID M. CAWRSE
------------------------------------------
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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
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Address:
c/o Credit Lyonnais Atlanta Agency
Suite 1700
235 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Pascal Seris, Vice President
$5,000,000 INTERCONTINENTAL BANK
By: /s/ KAREN B. GILMORE
------------------------------------------
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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/ MICHAEL KRZYSTOWCZYK
------------------------------------------
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Address:
One Detroit Center
500 Woodward Avenue, 9th Floor
Detroit, Michigan 48267
Attention: Michael Krzystowczyk, Vice
President
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$35,000,000 NATIONSBANK OF FLORIDA, N.A.
By: /s/ DESPINA Z. SIBLEY
------------------------------------------
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Address:
150 S.E. Third Avenue, Room 524
Miami, Florida 33131
Attention: Despina Z. Sibley, Vice President
$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
------------------------------------------
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Address:
701 Brickell Avenue, 6th Floor
Miami, Florida 33131
Attention: Clay F. Wilson, Vice President
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$25,000,000 NBD BANK
By: /s/ RICHARD J. JOHNSEN
------------------------------------------
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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
------------------------------------------
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Address:
231 S. LaSalle, 15th Floor
Chicago, Illinois 60697
Attention: Mark Lariviere, Vice President
$15,000,000 THE DAI-ICHI KANGYO BANK, LTD.
ATLANTA AGENCY
By: /s/ RYUJI NAKAMURA
------------------------------------------
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Address:
Marquis Two Tower, Suite 2400
285 Peachtree Center Avenue, N.E.
Atlanta, Georgia 30303
Attention: David Smith, First Vice President
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$20,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ SHUSAI NAGAI
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Address:
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303
Attention: James H. Medders, Vice President
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SCHEDULE II - LENDERS
THE FIRST NATIONAL BANK OF CHICAGO,
THE FIRST NATIONAL BANK OF BOSTON,
CREDIT LYONNAIS ATLANTA AGENCY,
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
INTERCONTINENTAL BANK,
COMERICA BANK,
NATIONSBANK OF FLORIDA, N.A.
THE FUJI BANK, LIMITED, NEW YORK BRANCH,
BARNETT BANK OF SOUTH FLORIDA, N.A.,
NBD BANK
BANK OF AMERICA ILLINOIS
THE DAI-ICHI KANGYO BANK, LTD., ATLANTA AGENCY
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY