Lennar Corp /New/ 8-K, filed Oct 15, 2026
Lennar Corp /New/ (LEN)
About this 8-K
Lennar Corp /New/ filed this 8-K on October 15, 2026.
Lennar Corporation settled an offering on October 15, 2026 of $300 million 5.700% Senior Notes due 2029 and $300 million 5.950% Senior Notes due 2032, guaranteed by certain wholly owned subsidiaries, for general corporate purposes. AI summary
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 8.01. Other Events.
On October 15, 2026, Lennar Corporation (the “Company”) settled its offering of (i) $300 million aggregate principal amount of the Company’s 5.700% Senior Notes due 2029 (the “2029 Notes”) and (ii) $300 million aggregate principal amount of the Company’s 5.950% Senior Notes due 2032 (the “2032 Notes” and together with the 2029 Notes, the “Notes”). The Notes are guaranteed by certain direct or indirect wholly owned subsidiaries of the Company (the “Guarantors”) listed on Schedule II of the underwriting agreement (the “Underwriting Agreement”) dated as of October 13, 2026 among the Company, the Guarantors and BBVA Securities Inc., BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC as representatives of the several underwriters named therein (the “Underwriters”), pursuant to which the Company agreed to issue and sell the Notes. The Company intends to use the net proceeds of the Notes offering for general corporate purposes.
The Notes were issued pursuant to the terms of an Indenture, dated as of December 31, 1997, as supplemented by the Sixteenth Supplemental Indenture, dated as of October 15, 2026 (the “Sixteenth Supplemental Indenture”) and the Seventeenth Supplemental Indenture, dated as of October 15, 2026 (the “Seventeenth Supplemental Indenture”), in each case, among the Company, the Guarantors and The Bank of New York Mellon, as trustee. The offering has been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the Company’s registration statement on Form S-3, File No. 333-294985 filed with the U.S. Securities and Exchange Commission (the “SEC”).
The relevant terms of the Notes, the Sixteenth Supplemental Indenture and the Seventeenth Supplemental Indenture are further described under the caption “Description of Notes” in the prospectus supplement dated as of October 13, 2026, filed with the SEC by the Company on October 14, 2026. Such description is incorporated in this Item 8.01 by reference. The Sixteenth Supplemental Indenture and the Seventeenth Supplemental Indenture (in each case, including the form of the Notes and the guarantees) are filed as Exhibits 4.1-4.6 to this Current Report on Form 8-K and incorporated herein by reference. The description of the Notes, the Sixteenth Supplemental Indenture and the Seventeenth Supplemental Indenture in this Current Report on Form 8-K is a summary and is qualified in its entirety by the terms of the Sixteenth Supplemental Indenture and the Seventeenth Supplemental Indenture, as applicable (in each case, including the form of the Notes).
The opinion of Cleary Gottlieb Steen & Hamilton LLP, relating to the validity of the Notes and the guarantees offered and sold pursuant to the Underwriting Agreement, is filed herewith as Exhibit 5.1.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed as part of this Current Report on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: October 15, 2026 | Lennar Corporation | |||||
| By: | /s/ Diane Bessette | |||||
| Name: | Diane Bessette | |||||
| Title: | Vice President and Chief Financial Officer | |||||
Exhibit 1.1
LENNAR CORPORATION
$300,000,000 5.700% Senior Notes due 2029
$300,000,000 5.950% Senior Notes due 2032
Underwriting Agreement
New York, New York
October 13, 2026
BBVA Securities Inc.
BofA Securities, Inc.
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
Truist Securities, Inc.
Wells Fargo Securities, LLC
as Representatives of the Underwriters
named on Schedule I hereto
c/o BBVA Securities Inc.
Two Manhattan West
375 9th Avenue, 9th Floor
New York, New York 10001
c/o BofA Securities, Inc.
One Bryant Park,
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
c/o Truist Securities, Inc.
50 Hudson Yards, 69th Floor
New York, New York 10001
c/o Wells Fargo Securities, LLC
550 South Tryon Street
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Lennar Corporation, a corporation organized under the laws of Delaware (the “Company”), and each of the direct or indirect wholly owned subsidiaries of the Company listed on Schedule II hereto (the “Guarantors”) hereby confirm their agreement with the underwriters named on Schedule I hereto (each, an “Underwriter” and collectively, the “Underwriters”) for whom BBVA Securities Inc., BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC (the “Representatives”) are acting as representatives, as set forth below.
Subject to the terms and conditions herein contained, the Company agrees to issue and sell to the Underwriters (i) $300,000,000 aggregate principal amount of the Company’s 5.700% Senior Notes due 2029 (the “2029 Notes”) and (ii) $300,000,000 aggregate principal amount of the Company’s 5.950% Senior Notes due 2032 (the “2032 Notes” and, together with the 2029 Notes, the “Notes”). The 2029 Notes will be issued pursuant to the terms of an Indenture, dated as of December 31, 1997 (the “Base Indenture”), as supplemented by a Sixteenth Supplemental Indenture (the “Sixteenth Supplemental Indenture” and, together with the Base Indenture, the “2029 Indenture”) among the Company, the Guarantors and The Bank of New York Mellon, as trustee (the “Trustee”) and the 2032 Notes will be issued pursuant to the terms of the Base Indenture, as supplemented by a Seventeenth Supplemental Indenture (the “Seventeenth Supplemental Indenture” and, together with the Base Indenture, the “2032 Indenture” and, together with the 2029 Indenture, the “Indentures” and each, an “Indenture”) among the Company, the Guarantors and the Trustee. The Sixteenth Supplemental Indenture and the Seventeenth Supplemental Indenture are collectively referred to herein as the “Supplemental Indentures” and each, a “Supplemental Indenture”. The Notes will, under certain circumstances, be unconditionally guaranteed (collectively, the “Guarantees”) jointly and severally, by some or all of the Guarantors. The Notes and the Guarantees are collectively referred to herein as the “Securities.”
In connection with the sale of the Securities, the Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-294985), which contains a base prospectus (the “Base Prospectus”) to be used in connection with the public offer and sale of securities of the Company, including the Securities. Such registration statement, as amended through the date hereof, including the financial statements, exhibits and schedules thereto and the documents incorporated by reference therein, at each time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Act”), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Act, is called the “Registration Statement.” Any preliminary prospectus supplement that describes the Securities and the offering thereof and is used prior to the filing of the Final Prospectus is hereafter called, together with the Base Prospectus, a “Preliminary Prospectus.” The term “Final Prospectus” shall mean the final prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) under the Act after the Applicable Time (as defined below), together with the Base Prospectus. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act; any reference to any amendment or supplement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include any information and documents filed after the date of such Registration Statement, Base Prospectus, Preliminary Prospectus or Final Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), and incorporated by reference in such Registration Statement, Base Prospectus, Preliminary Prospectus or Final Prospectus, as the case may be. The term “General Disclosure Package” shall mean (i) any Preliminary Prospectus, as amended or supplemented,
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(ii) any “issuer free writing prospectus” (as defined in Rule 433 under the Act) (each, an “Issuer Free Writing Prospectus”) identified in Schedule III hereto, (iii) any other “free writing prospectus” (as defined in Rule 405 under the Act) that the parties hereto shall hereafter expressly agree in writing to treat as part of the General Disclosure Package, and (iv) the Pricing Term Sheet (as defined in Section 5(b) hereof).
Each of the Preliminary Prospectus and the Final Prospectus sets forth or incorporates, or will set forth or incorporate, a description of the terms of the Securities, the terms of the offering of the Securities, a description of the Company and any material developments relating to the Company occurring after the date of the most recent historical financial statements incorporated by reference therein. Unless stated to the contrary, all references herein to (i) the Final Prospectus are to the Final Prospectus at the date thereof and (ii) the Preliminary Prospectus or the General Disclosure Package are to the Preliminary Prospectus or the General Disclosure Package as of the Applicable Time and shall not be deemed to include any amendment or supplement thereto subsequent to the date thereof or any information filed under the Exchange Act, subsequent to the date thereof which is incorporated by reference therein. As used herein, “Applicable Time” means 3:15 p.m. (New York City time) on October 13, 2026, or such other time as agreed to by the Company and the Representatives.
1. Representations and Warranties of the Company and the Guarantors. The Company and the Guarantors jointly and severally represent and warrant to, and agree with, each Underwriter as set forth below in this Section 1:
(a) The Company meets the requirements for use of, and is eligible to use, Form S-3 under the Act. The Company has prepared and filed with the Commission the Registration Statement, including the related Base Prospectus, for registration under the Act of the offering and sale of securities of the Company, including the Securities. The Registration Statement, including any amendments thereto filed prior to the Applicable Time, became, or will become, effective upon filing. The Company has filed with the Commission a Preliminary Prospectus relating to the Securities, which has previously been furnished to the Underwriters. The Company will file with the Commission the Final Prospectus relating to the Securities in accordance with Rule 424(b) under the Act. As filed, the Final Prospectus shall contain all information required by the Act, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Underwriters prior to the Applicable Time or, to the extent not completed at the Applicable Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised the Underwriters, prior to the Applicable Time, will be included or made therein. The Registration Statement, at the Applicable Time, meets the requirements set forth in Rule 415(a)(1)(x) under the Act. The date on which the Registration Statement first became effective was not earlier than the date that is three years before the Applicable Time. No stop order suspending the effectiveness of the Registration Statement or any notice objecting to the Company’s use of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened.
(b) Each of the Registration Statement and any post-effective amendment thereto, at the respective times the Registration Statement and such post-effective amendment thereto became effective and as of the date hereof and as of the Closing Date (as defined herein), (i) complied or will comply (as applicable) in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act, and (ii) did not and will not (as applicable) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The preceding sentence does not apply to (A) statements in or omissions from the Registration
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Statement and any post-effective amendment thereto based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof, or (B) the part of the Registration Statement and any post-effective amendment thereto that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee.
(c) Each of the Preliminary Prospectus and the Final Prospectus (and any supplement thereto), when filed with the Commission and as of the date hereof and as of the Closing Date, (i) complied or will comply (as applicable) in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act, and (ii) did not or will not (as applicable) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. The preceding sentence does not apply to (A) statements in or omissions from the Preliminary Prospectus and the Final Prospectus (and any supplement thereto) based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof, or (B) the part of the Preliminary Prospectus and the Final Prospectus (and any supplement thereto) that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee.
(d) The Base Indenture, when filed with the Commission, complied in all material respects with the applicable requirements of the Trust Indenture Act and was duly qualified as an indenture under the Trust Indenture Act.
(e) (i) The General Disclosure Package and (ii) each electronic road show distributed by or on behalf of the Company, when taken together as a whole with the General Disclosure Package, does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the General Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(f) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption in Rule 163 under the Act, and (iv) at the Applicable Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405 under the Act. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
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(g) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 under the Act), without taking account of any determination by the Commission pursuant to Rule 405 under the Act that it is not necessary that the Company be considered an Ineligible Issuer.
(h) Each Issuer Free Writing Prospectus and the Pricing Term Sheet prepared and filed pursuant to Section 5(b) hereof does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the General Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent of failures to qualify that could not in the aggregate reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole.
(j) Each consolidated subsidiary of the Company that is directly or indirectly at least 50% owned by the Company (including each of the Guarantors) has been duly incorporated or organized, is validly existing as an entity in good standing under the laws of the jurisdiction of its incorporation or organization, has the power and authority to own its property and to conduct its business as described in the General Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent of failures to qualify that could not in the aggregate reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or other ownership interests of each consolidated subsidiary of the Company that is directly or indirectly at least 50% owned by the Company (including each of the Guarantors) have been duly and validly authorized and issued, are fully paid and non-assessable and, except as described in the General Disclosure Package and the Final Prospectus, all of the shares of capital stock or other ownership interests that are described as being owned by the Company (including all the shares of capital stock or other ownership interests in each of the Guarantors) are owned directly or indirectly by the Company free and clear of all liens, encumbrances, equities or claims.
(k) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors; the Base Indenture has been duly authorized by the Company and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms; each Supplemental Indenture has been duly authorized by the Company and the Guarantors and, assuming due authorization, execution and delivery thereof by the Trustee, when
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executed and delivered by the Company and the Guarantors, will constitute a legal, valid and binding instrument enforceable against the Company and each of the Guarantors in accordance with its terms and the Base Indenture will constitute a legal, valid and binding instrument enforceable against the Guarantors in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the Notes have been duly authorized by the Company, and, when executed and authenticated in accordance with the provisions of the applicable Indenture and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the applicable Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(l) The Guarantees will be in the form contemplated by the applicable Indenture. The Guarantees have been duly authorized by the Guarantors and, when executed and delivered by each of the Guarantors in accordance with the provisions of the applicable Indenture, will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Guarantors, entitled to the benefits of the applicable Indenture and enforceable against the Guarantors in accordance with their terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(m) Each of the Indentures and the Securities conforms in all material respects to the description thereof contained in the General Disclosure Package and the Final Prospectus.
(n) The shares of Class A Common Stock and Class B Common Stock of the Company that are outstanding have been duly authorized by the Company and are validly issued, fully paid and non-assessable; and the holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the capital stock or any other securities of the Company; and, except as set forth in the General Disclosure Package and the Final Prospectus or otherwise disclosed in writing to the Underwriters, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock or other securities of the Company are outstanding.
(o) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the execution, delivery and performance by the Company and the Guarantors (as applicable) of this Agreement, the Indentures or the Securities, the issuance and sale of the Securities or the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the General Disclosure Package and the Final Prospectus.
(p) Neither the issuance and sale of the Securities nor the consummation of any other of the transactions contemplated herein or in the General Disclosure Package and the Final Prospectus, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or result in imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed
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of trust, note agreement, credit agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or by which it is bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, except as set forth in the General Disclosure Package and the Final Prospectus.
(q) There has not occurred any material adverse change, or any development, that involves a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(r) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(s) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the General Disclosure Package and the Final Prospectus present fairly in all material respects the consolidated financial condition, results of operations and cash flows of the Company and its subsidiaries as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Act and the Exchange Act and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein); and the other financial and statistical information and data set forth or incorporated by reference in the General Disclosure Package and the Final Prospectus are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the General Disclosure Package and the Final Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(t) Deloitte & Touche LLP, who have certified certain consolidated financial statements of the Company and its subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the General Disclosure Package and the Final Prospectus, are independent registered public accountants within the meaning of the Act and the Exchange Act.
(u) Each of the Company and its subsidiaries has good and marketable title to all real property described in the General Disclosure Package and the Final Prospectus as being owned by it and good and marketable title to the leasehold estate in the real property described therein as being leased by it, free and clear of all liens, charges, encumbrances or restrictions, except, in each case, as described in the General Disclosure Package and the Final Prospectus or such as
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would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). All leases, contracts and agreements, including those referred to in the General Disclosure Package and the Final Prospectus to which the Company or any of its subsidiaries is a party or by which any of them is bound are valid and enforceable against the Company or any such subsidiary, are valid and enforceable against the other party or parties thereto and are in full force and effect, except where the failure to be valid and enforceable against the other party or other parties thereto or to be in full force and effect would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(v) None of the Company nor any subsidiary is in violation or default of (i) any provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, credit agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except, in the cases of clauses (ii) and (iii) for such violations and defaults that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. No holders of any series of outstanding securities of the Company have (x) directly notified the Company or, to the Company’s best knowledge, notified the Trustee of any default with respect to such securities or (y) declared the principal and accrued interest, if any, on such securities to be due and payable.
(w) The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except to the extent the failure to possess the same could not in the aggregate reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(x) Each of the Company and the Guarantors is not and, after giving effect to the offering and the sale of the Securities and the application of the proceeds thereof as described in the General Disclosure Package and the Final Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
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(y) The Company has filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions of the time for filing thereof except in any case in which the failure so to file would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(z) No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, that could have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(aa) The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no material claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(bb) Except as described in or contemplated by the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), no subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company.
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(cc) The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the General Disclosure Package and the Final Prospectus is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(dd) Except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the Company and its subsidiaries are (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety or the environment, or the release, manufacture, processing, distribution, use, generation, treatment, storage, transport or handling of hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, nor been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, liability or “potentially responsible party” status would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(ee) In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ff) Each of the Company and its subsidiaries has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published interpretations) in which employees of the Company and its subsidiaries are eligible to participate and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations. The Company and its subsidiaries have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course and without default) or to any such plan under Title IV of ERISA.
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(gg) The subsidiaries listed on Annex A attached hereto include all the significant subsidiaries of the Company as defined in Rule 1-02 of Regulation S-X.
(hh) Except as could not in the aggregate reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole:
(i) The Company and its subsidiaries own, possess, license or have other rights to use, on reasonable terms, all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Intellectual Property”) necessary for the conduct of the Company’s business in all material respects as now conducted or as proposed in the General Disclosure Package and the Final Prospectus to be conducted;
(ii) There are no conflicting rights of third parties to any such Intellectual Property;
(iii) There is no material infringement by third parties of any such Intellectual Property;
(iv) There is no pending or, to the Company’s best knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim;
(v) There is no pending or, to the Company’s best knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim;
(vi) There is no pending or, to the Company’s best knowledge, threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other fact which would form a reasonable basis for any such claim.
(ii) Except as disclosed in the General Disclosure Package and the Final Prospectus, the Company does not have any material lending or other relationship with any bank or firm that the Company believes to be a lending affiliate of any of the Underwriters. The Company intends to use the proceeds from the sale of the Securities hereunder for the purposes described in the General Disclosure Package and the Final Prospectus under the caption “Use of Proceeds.”
(jj) The offering or sale of the Securities as contemplated by this Agreement does not give rise to any rights, other than those that have been waived or satisfied, for or relating to the registration of any securities of the Company or the Guarantors.
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(kk) The Company has established and maintains disclosure controls and procedures and internal controls over financial reporting (as such terms are defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s chief executive officer and its chief financial officer by others within those entities, and such disclosure controls and procedures are effective to perform the functions for which they were established; such internal controls over financial reporting are designed to provide reasonable assurance regarding the reliability of financial reporting and of the preparation of financial statements in accordance with generally accepted accounting principles and are effective to perform the functions for which they are designed; since the date of the most recent evaluation of internal controls over financial reporting, there have been no significant changes in disclosure controls and procedures and internal control over financial reporting or in other factors that could significantly affect disclosure controls and procedures and internal control over financial reporting, including any corrective actions with regard to significant deficiencies and material weaknesses; the principal executive officers and principal financial officers of the Company have made all certifications required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and any related rules and regulations promulgated thereunder, and the statements contained in any such certification are complete and correct; and the Company is and, to the best knowledge of the Company, all of its directors and executive officers (in their capacity as such) are, otherwise in compliance with all applicable provisions of the Sarbanes-Oxley Act that are effective.
(ll) Neither the Company nor any of the Guarantors has taken, nor will any of them take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Securities.
(mm) Except as disclosed in the General Disclosure Package and the Final Prospectus, there are no business relationships or related party transactions which would be required to be disclosed in a registration statement under the Act by Item 404 of Regulation S-K of the Commission, and each description in the General Disclosure Package and the Final Prospectus of a business relationship or related party transaction is a fair and accurate description of the relationships and transactions so described in all material respects.
(nn) The Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. Each document filed, or to be filed prior to the closing of transactions contemplated by this Agreement, by the Company pursuant to the Exchange Act and incorporated, or to be incorporated, by reference in the General Disclosure Package and the Final Prospectus (or any amendment or supplement thereto) at the time filed with the Commission conformed, or will conform, in all material respects with the Exchange Act.
(oo) Neither the Company nor any of its subsidiaries nor, to the best knowledge of the Company, any director, officer, agent or employee of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of (i) the Foreign Corrupt Practices Act of 1977, as amended (and the rules and regulations thereunder) (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, (ii) the U.K. Bribery Act 2010, as amended (and the rules and regulations thereunder), or (iii) any similar law of any other relevant jurisdiction (and the rules or regulations thereunder) (collectively, the “Anti-Corruption Laws”); and the Company, its subsidiaries and, to the best knowledge of the Company, its affiliates have conducted their businesses in compliance with the Anti-Corruption Laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the Anti-Corruption Laws.
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(pp) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(qq) None of the Company, any of its subsidiaries or, to the best knowledge of the Company, any director, officer, agent or employee of the Company or any of its subsidiaries is currently (i) included on the List of Specially Designated Nationals and Blocked Persons (the “SDN List”) maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), (ii) subject to, or controlled or 50% or more owned by, an individual or entity that is currently the subject of any sanctions administered or enforced by OFAC, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce, the United Nations Security Council, the European Union, or His Majesty’s Treasury (“HMT”) of the United Kingdom (collectively, “Sanctions” and such persons, “Sanctioned Persons” ), or (iii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory, as of the date hereof, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the non-government controlled areas of the Kherson and Zaporizhzhia oblasts of Ukraine or the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria (with respect to Syria only until July 1, 2025) (collectively, “Sanctioned Countries”); and the Company shall not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing or facilitating the activities or business of or with any Sanctioned Person or an individual or entity that is the subject of Sanctions or in any Sanctioned Country or in any manner, in each case, that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions. Since April 24, 2019, neither the Company nor any of the Company’s subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country that at such time was subject to Sanctions, in violation of Sanctions, nor does the Company or any of the Company’s subsidiaries have any plans to engage in dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country in violation of Sanctions.
(rr) Except as could not in the aggregate reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole:
(i) The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate and perform as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, and, to the Company’s best knowledge, are free and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants;
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(ii) The Company and its subsidiaries have undertaken commercially reasonable efforts to implement and maintain commercially reasonable controls, policies, procedures, and safeguards designed to maintain and protect their confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including any such data defined as “personal information”, “personally identifiable information”, “sensitive personal information” under applicable data protection laws (such data, “Personal Data”)) used in connection with their businesses, and, to the Company’s best knowledge, there have been no breaches, violations, outages or unauthorized uses of or accesses to the same, except for those that have been remedied without cost or liability or the duty to notify any other person, nor any known investigations relating to the same; and
(iii) The Company and its subsidiaries are presently in compliance with (i) all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, in each case, relating to the processing of Personal Data (ii) publicly available privacy policies and (iii) contractual obligations relating to the privacy and security of the Company’s IT Systems (and Personal Data stored thereon).
Any certificate signed by any officer of the Company or any Guarantor and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company or such Guarantor (as applicable), as to the matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, (i) at a purchase price of 99.579% of their principal amount, plus accrued interest, if any, from October 15, 2026, the aggregate principal amount of the 2029 Notes set forth opposite such Underwriter’s name in Schedule I hereto and (ii) at a purchase price of 99.348% of their principal amount, plus accrued interest, if any, from October 15, 2026, the aggregate principal amount of the 2032 Notes set forth opposite such Underwriter’s name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made at 10:00 AM, New York City time, on October 15, 2026 , or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Notes shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Notes shall be made through the facilities of The Depository Trust Company (“DTC”), unless the Representatives shall otherwise instruct.
4. Offering by the Underwriters. It is understood that the Underwriters will propose to offer the Securities for sale to the public as set forth in the General Disclosure Package and the Final Prospectus as soon as they deem it advisable to do so. The Securities are to be initially offered at the offering price set forth in the General Disclosure Package and the Final Prospectus. The Underwriters may from time to time thereafter change the price and other selling terms.
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5. Agreements. The Company and the Guarantors, jointly and severally, agree with the Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object (except that the Company will not be prevented from amending or supplementing the Registration Statement or the Final Prospectus in accordance with, and to the extent necessary to comply with, paragraph (c) or (d) of this Section 5). The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) under the Act, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a pricing term sheet, containing solely a description of final terms of the Securities and the offering thereof, in the form approved by you and substantially in the form attached as Schedule III hereto (such term sheet, the “Pricing Term Sheet”) and will file the Pricing Term Sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b) under the Act, any event occurs as a result of which the General Disclosure Package would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, the Company will (i) promptly notify the Representatives so that any use of the General Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the General Disclosure Package to correct such statement or omission, subject to the Company furnishing you a copy of such amendment or supplement for your review as required by the first sentence of paragraph (a) of this Section 5 and making any modifications that you reasonably request; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
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(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act), any event occurs as a result of which the Final Prospectus as then supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, including in connection with the use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the Company furnishing you a copy for your review as required by the first sentence of paragraph (a) of this Section 5 and making any modifications that you reasonably request, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable (if it does not become effective automatically when it is filed) in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act (which obligation will be considered satisfied by a filing on the Commission’s EDGAR system).
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement and any post-effective amendments to it (including exhibits thereto), in each case, as may be reasonably requested and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will cooperate with the Underwriters in arranging for the qualification of the Securities for offering and sale under the securities or blue sky laws of such jurisdictions as the Underwriters may designate and will continue such qualification in effect for as long as may be necessary to complete the resale of the Securities by the Underwriters; provided, however, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to any taxation of its income or any service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company shall apply the net proceeds from the sale of the Securities as set forth under “Use of Proceeds” in the General Disclosure Package and the Final Prospectus.
(i) For so long as any Securities remain outstanding, the Company will furnish to the Underwriters copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or the holders of the Securities and, as soon as available, copies of any reports or financial statements filed by the Company with the Commission or furnished to any national securities exchange on which any class of securities of the Company may be listed.
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The Company’s obligations under this Section 5(i) will be considered satisfied by a filing on the Commission’s EDGAR system.
(j) Prior to the Closing Date, the Company will not file any document under the Exchange Act which is incorporated by reference in the General Disclosure Package or the Final Prospectus, in each case unless the Underwriters previously have been advised of, and furnished with a copy within a reasonable period of time prior to, the proposed filing. Prior to the Closing Date, the Company will advise the Underwriters of the time when any document filed under the Exchange Act which is incorporated by reference in the General Disclosure Package or the Final Prospectus has been filed with the Commission and will provide evidence satisfactory to the Underwriters of each such filing.
(k) The Company will cooperate with the Underwriters and use all reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC and such other clearance and settlement systems that the Underwriters may designate.
(l) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(m) The Company will not during the period beginning on the date hereof and continuing to and including the Closing Date, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, of any debt securities of the Company (other than the Securities and any commercial paper notes that are exempt from registration by reason of Section 3(a)(3) of the Act).
(n) Without the prior written consent of the Representatives, the Company has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Act, other than a free writing prospectus containing the information contained in the Pricing Term Sheet prepared and filed pursuant to Section 5(b) hereof; provided, that, the prior written consent of the Representatives shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
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(o) The Company and the Guarantors will pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the Act without regard to the proviso therein and otherwise in accordance with Rule 456(b) and Rule 457(r) of the Act.
6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein as of the Applicable Time and the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b) under the Act; the Pricing Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Act.
(b) On the Closing Date, Cleary Gottlieb Steen & Hamilton LLP shall have furnished to the Underwriters its written opinion and negative assurance letter addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(c) On the Closing Date, the Chief Legal Officer of the Company shall have furnished to the Underwriters its written opinion addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(d) The Underwriters shall have received from Cahill Gordon & Reindel LLP, counsel for the Underwriters, its written opinion and negative assurance letter, dated the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indentures and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriters a certificate of the Company and each of the Guarantors, signed by the Chief Executive Officer, the President or a Vice President and the principal financial or accounting officer of the Company and an authorized officer of each Guarantor, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the General Disclosure Package and the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company and the Guarantors have complied, in all material respects, with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently) and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or threatened; and
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(iii) since the date of the most recent financial statements included or incorporated by reference in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Underwriters shall have received from Deloitte & Touche LLP, independent auditors, with respect to the Company (i) a customary comfort letter, dated the date hereof, with respect to the financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and their counsel, to the effect that Deloitte & Touche LLP reaffirms the statements made in its letter furnished pursuant to clause (i) with respect to the financial statements and certain financial information contained or incorporated by reference in the General Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date.
(g) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) and prior to the Closing Date, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in the sole judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Applicable Time and prior to the Closing Date, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given by such a rating organization of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The issuance and sale of the Securities pursuant to this Agreement shall not have been enjoined (temporarily or permanently), no restraining order or other injunctive order shall have been issued and no action, suit or proceeding shall have been commenced with respect to this Agreement before any court or governmental authority.
(j) No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened, and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the Company’s use of the automatic shelf registration statement form.
(k) The Supplemental Indentures shall have been duly executed and delivered by the Company, the Guarantors and the Trustee, and the Securities shall have been duly executed by the Company and the Guarantors, as applicable, and the Securities shall have been duly authenticated by the Trustee.
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(l) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered to Cahill Gordon & Reindel LLP, counsel for the Underwriters, via electronic delivery on the Closing Date.
7. Expenses. Subject to the following paragraph, the Company agrees to pay all costs and expenses incident to the performance of its obligations under this Agreement, whether or not the transactions contemplated herein are consummated or this Agreement is terminated pursuant to Section 10 hereof, including all costs and expenses incident to: (i) the filing and printing, word processing or other production and delivery of such documents as may be reasonably requested for use in connection with the transaction, including any costs of printing and delivery to the Underwriters of the General Disclosure Package and the Final Prospectus and any amendments or supplements thereto, and any blue sky memoranda, (ii) the fees and disbursements of the counsel, the accountants and any other experts or advisors retained by the Company, (iii) the preparation (including printing), issuance and delivery to the Underwriters of the Securities, (iv) the qualification of the Securities under state securities and blue sky laws, including filing fees and reasonable fees and disbursements of counsel for the Underwriters relating thereto, up to a maximum amount of counsel fees equal to $15,000, (v) the expenses of the Company in connection with any meetings with prospective investors in the Securities, (vi) the fees and expenses of the Trustee, including fees and expenses of its counsel, (vii) any fees charged by investment rating agencies for the rating of the Securities, (viii) any filings required to be made by the Underwriters with the Financial Industry Regulatory Authority, Inc. (“FINRA”), including filing fees and reasonable fees and disbursements of counsel for the Underwriters relating to such filings and the review by FINRA of the terms of the sale of the Securities, up to a maximum amount of counsel fees equal to $10,000, (ix) all stamp taxes, transfer taxes, and similar taxes (“Transfer Taxes”) on the issuance of the Securities and delivery of the Securities to the Underwriters (including any such taxes arising from the execution of this Agreement, the Indentures or any other documents and the delivery of such Securities and execution of any related documents) and any such Transfer Taxes on the resale of the Securities by the Underwriters, and (x) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement.
If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representatives on demand for all reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
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8. Indemnification and Contribution.
(a) The Company and each of the Guarantors, jointly and severally, agree to indemnify and hold harmless the Underwriters, the directors, officers, employees and agents of the Underwriters, and each person who controls the Underwriters within the meaning of either the Act or the Exchange Act, against any losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereto (including any information deemed to be a part thereof pursuant to Rule 430B or Rule 430C under the Act), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus, the Final Prospectus or any amendment or supplement thereto or any electronic road show distributed by or on behalf of the Company, or the omission or alleged omission therefrom of a material fact, in each case, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that neither the Company nor any of the Guarantors will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company or the Guarantors by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company and the Guarantors, each of their directors, each of their officers and each person who controls the Company or the Guarantors within the meaning of either the Act or the Exchange Act to the same extent as the foregoing indemnity from the Company and the Guarantors to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company or the Guarantors by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have. The Company and the Guarantors acknowledge that the statements set forth under the heading “Underwriting” in the seventh and eighth paragraphs in the Preliminary Prospectus, the General Disclosure Package and the Final Prospectus constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Preliminary Prospectus, the General Disclosure Package and the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s
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expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable out-of-pocket fees, costs and expenses of such separate counsel if (1) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (2) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (3) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (4) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes (A) an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) no statement or finding of fault, culpability or failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Guarantors and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively, “Losses”) to which the Company and the Guarantors and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among the Underwriters relating to the offering of the Securities) be responsible for any amount in excess of the aggregate underwriting discounts and commissions applicable to the Notes of each series purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Guarantors and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantors on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company and the Guarantors shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by the Company, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case, as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company or the Guarantors on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Underwriters’ obligation to contribute shall be several in proportion to their respective purchase obligations hereunder and not joint. The Company and the Guarantors and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this
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paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company or the Guarantors within the meaning of either the Act or the Exchange Act, each officer of the Company or the Guarantors and each director of the Company or the Guarantors shall have the same rights to contribution as the Company and the Guarantors, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Notes of the applicable series set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Notes of such series set forth opposite the names of all the remaining non-defaulting Underwriters) the Notes of such series which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the nondefaulting Underwriters shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading generally shall have been suspended or materially limited by the New York Stock Exchange or the over-the-counter market, (ii) trading of any securities issued or guaranteed by the Company or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter market, (iii) a banking moratorium shall have been declared either by Federal or New York State authorities or a material disruption in clearance or settlement systems through which transfers of securities of the Company are effected shall have occurred or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by any Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company and the Guarantors or their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or the Guarantors or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7, 8 and 14 hereof shall survive the termination or cancellation of this Agreement.
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12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to BBVA Securities Inc., Two Manhattan West, 375 9th Avenue, 9th Floor, New York, NY 10001, Email: ny.dcmoriginationus.group@bbva.com, BofA Securities, Inc., 114 West 47th Street, NY8-114-07-01, New York, New York 10036, Attention: High Grade Transaction management/Legal, Fax: 646-855-5958, Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Registration Department, Email: registration-syndops@ny.email.gs.com, J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk, Phone: 212-834-4533, Fax: 212-834-6081, Mizuho Securities USA LLC, 1271 Avenue of the Americas, New York, New York 10020, Email: BA_DCM_Notices@mizuhogroup.com, Attention: Debt Capital Markets, Truist Securities, Inc., 50 Hudson Yards, 69th Floor, New York, New York 10001 and Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202, Email: tmgcapitalmarkets@wellsfargo.com, Attention: Transaction Management; or, if sent to the Company or the Guarantors, will be mailed, delivered or telefaxed to Lennar Corporation, 5505 Waterford District Drive, Miami, Florida 33126, Attn: Chief Legal Officer (fax no.: (305) 229-6650).
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. No Fiduciary Relationship. The Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, none of the Underwriters is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
15. Obligations of Guarantors. Notwithstanding anything in this Agreement to the contrary, a Guarantor will not have any liability with regard to representations and warranties in Section 1, with regard to indemnification or contribution under Section 8 or with regard to any other provisions of this Agreement, at any time when that Guarantor is not guaranteeing the Company’s obligations under the Notes (whether because that Guarantor has never guaranteed the Company’s obligations under the Notes, because that Guarantor’s guarantee of the Company’s obligations under the Notes has been suspended or because that Guarantor has been released as a guarantor of the Notes in accordance with the terms of the applicable Indenture).
16. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 16:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
17. Applicable Law. This Agreement and any claim, controversy or dispute relating to or arising out of this Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
18. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent,
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communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
20. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
21. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
22. Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
23. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Class A Common Stock” shall mean the Company’s Class A common stock, par value $.10 per share.
“Class B Common Stock” shall mean the Company’s Class B common stock, par value $.10 per share.
“significant subsidiary” shall mean each subsidiary of the Company that as of the date of this Agreement is a “significant subsidiary” for purposes of Rule 1-02 of Regulation S-X under the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement among the Company, the Guarantors and the several Underwriters.
| Very truly yours, | ||
| LENNAR CORPORATION | ||
| By: | /s/ Diane Bessette | |
| Name: Diane Bessette | ||
| Title: Vice President and Chief Financial Officer | ||
| GUARANTORS | ||
| Authorized signatory for each of the Guarantors listed on Schedule II hereto | ||
| By: | /s/ Diane Bessette | |
| Name: Diane Bessette | ||
| Title: Authorized Officer | ||
[Signature Page to Underwriting Agreement]
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
For themselves and each as a Representative of the other Underwriters
named in Schedule I hereto.
| BBVA Securities Inc. | ||
| By: | /s/ Babak Ghatan | |
| Name: Babak Ghatan | ||
| Title: Managing Director | ||
| BofA Securities, Inc. | ||
| By: | /s/ Robert Colucci | |
| Name: Robert Colucci | ||
| Title: Managing Director | ||
| Goldman Sachs & Co. LLC | ||
| By: | /s/ Jonathan Zwart | |
| Name: Jonathan Zwart | ||
| Title: Managing Partner | ||
| J.P. Morgan Securities LLC | ||
| By: | /s/ Stephen L. Sheiner | |
| Name: Stephen L. Sheiner | ||
| Title: Executive Director | ||
| Mizuho Securities USA LLC | ||
| By: | /s/ Victor Forte | |
| Name: Victor Forte | ||
| Title: Managing Director | ||
| Truist Securities, Inc. | ||
| By: | /s/ Rob Nordlinger | |
| Name: Rob Nordlinger | ||
| Title: Managing Director | ||
| Wells Fargo Securities, LLC | ||
| By: | /s/ Carolyn Hurley | |
| Name: Carolyn Hurley | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement]
SCHEDULE II
Guarantors
| Greystone Nevada, LLC |
| Lennar Arizona, LLC |
| Lennar Carolinas, LLC |
| Lennar Colorado, LLC |
| Lennar Georgia, LLC |
| Lennar Homes of Alabama, LLC |
| Lennar Homes of California, LLC |
| Lennar Homes of Indiana, LLC |
| Lennar Homes of Oklahoma, LLC |
| Lennar Homes of Tennessee, LLC |
| Lennar Homes of Texas Land and Construction, Ltd. |
| Lennar Homes, LLC |
| Lennar Northwest, LLC |
| Lennar Reno, LLC |
| TI Lot 8, LLC |
| U.S. Home, LLC |
Exhibit 4.1
LENNAR CORPORATION,
as Issuer,
THE GUARANTORS NAMED HEREIN
and
THE BANK OF NEW YORK MELLON,
as Trustee
SIXTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 15, 2026
to
INDENTURE
DATED AS OF DECEMBER 31, 1997
relating to
5.700% Senior Notes Due 2029
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE DEFINITIONS | 2 | |||||
| SECTION 1.01. |
Definitions |
2 | ||||
| SECTION 1.02. |
Additional Rules of Construction |
9 | ||||
| ARTICLE TWO THE NOTES | 9 | |||||
| SECTION 2.01. |
Creation of Series |
9 | ||||
| SECTION 2.02. |
Optional Redemption by the Company |
11 | ||||
| SECTION 2.03. |
Defaulted Interest |
13 | ||||
| SECTION 2.04. |
CUSIP Number |
13 | ||||
| SECTION 2.05. |
Deposit of Monies |
13 | ||||
| SECTION 2.06. |
Transfer and Exchange |
14 | ||||
| SECTION 2.07. |
Book-Entry Provisions for Global Notes |
14 | ||||
| SECTION 2.08. |
Denominations |
16 | ||||
| ARTICLE THREE SUCCESSOR CORPORATION | 16 | |||||
| SECTION 3.01. |
Company May Consolidate, etc., Only on Certain Terms |
16 | ||||
| SECTION 3.02. |
Successor Corporation Substituted |
17 | ||||
| ARTICLE FOUR ADDITIONAL COVENANTS | 17 | |||||
| SECTION 4.01. |
Payment of Notes |
17 | ||||
| SECTION 4.02. |
Reporting |
17 | ||||
| SECTION 4.03. |
Corporate Existence |
17 | ||||
| SECTION 4.04. |
Compliance Certificate |
18 | ||||
| SECTION 4.05. |
Further Instruments and Acts |
18 | ||||
| SECTION 4.06. |
Limitations on Liens |
18 | ||||
| SECTION 4.07. |
Sale-Leaseback Transactions |
20 | ||||
| SECTION 4.08. |
Furnishing Guarantees |
21 | ||||
| SECTION 4.09. |
Change of Control |
22 | ||||
| ARTICLE FIVE DEFAULTS AND REMEDIES | 25 | |||||
| SECTION 5.01. |
Events of Default |
25 | ||||
| SECTION 5.02. |
Acceleration of Maturity; Rescission and Annulment |
26 | ||||
| SECTION 5.03. |
Waiver of Existing Defaults |
27 | ||||
| SECTION 5.04. |
Limitation on Suits |
27 | ||||
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| ARTICLE SIX DISCHARGE OF SUPPLEMENTAL INDENTURE | 28 | |||||
| SECTION 6.01. |
Discharge of Supplemental Indenture |
28 | ||||
| SECTION 6.02. |
Application of Trust Money |
28 | ||||
| SECTION 6.03. |
Repayment to the Company |
29 | ||||
| SECTION 6.04. |
Reinstatement |
29 | ||||
| SECTION 6.05. |
Officers’ Certificate; Opinion of Counsel |
29 | ||||
| ARTICLE SEVEN SUPPLEMENTAL INDENTURES | 29 | |||||
| SECTION 7.01. |
Without Consent of Holders |
29 | ||||
| SECTION 7.02. |
With Consent of Holders |
30 | ||||
| ARTICLE EIGHT GUARANTEE OF NOTES | 30 | |||||
| SECTION 8.01. |
Unconditional Guarantee |
30 | ||||
| SECTION 8.02. |
Limitations on Guarantees; Release of Particular Guarantors’ Obligations |
32 | ||||
| SECTION 8.03. |
Execution and Delivery of Guarantee |
32 | ||||
| SECTION 8.04. |
Release of a Guarantor in Connection with a Sale |
32 | ||||
| SECTION 8.05. |
Waiver of Subrogation |
33 | ||||
| SECTION 8.06. |
No Set-Off |
33 | ||||
| SECTION 8.07. |
Obligations Absolute |
34 | ||||
| SECTION 8.08. |
Obligations Continuing |
34 | ||||
| SECTION 8.09. |
Obligations Not Reduced |
34 | ||||
| SECTION 8.10. |
Obligations Reinstated |
34 | ||||
| SECTION 8.11. |
Obligations Not Affected |
34 | ||||
| SECTION 8.12. |
Waiver |
35 | ||||
| SECTION 8.13. |
No Obligation to Take Action Against the Company |
36 | ||||
| SECTION 8.14. |
Dealing with the Company and Others |
36 | ||||
| SECTION 8.15. |
Default and Enforcement |
36 | ||||
| SECTION 8.16. |
Amendment, etc. |
36 | ||||
| SECTION 8.17. |
Acknowledgment |
36 | ||||
| SECTION 8.18. |
Costs and Expenses |
37 | ||||
| SECTION 8.19. |
No Merger or Waiver; Cumulative Remedies |
37 | ||||
| SECTION 8.20. |
Survival of Obligations |
37 | ||||
| SECTION 8.21. |
Guarantee in Addition to Other Obligations |
37 | ||||
| SECTION 8.22. |
Severability |
37 | ||||
| SECTION 8.23. |
Successors and Assigns |
37 | ||||
| SECTION 8.24. |
Acknowledgement under TIA |
37 | ||||
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| ARTICLE NINE MISCELLANEOUS | 38 | |||||
| SECTION 9.01. |
TIA Controls |
38 | ||||
| SECTION 9.02. |
Conflict with Indenture |
38 | ||||
| SECTION 9.03. |
Notices |
38 | ||||
| SECTION 9.04. |
Electronic Instructions/Directions |
39 | ||||
| SECTION 9.05. |
Governing Law |
40 | ||||
| SECTION 9.06. |
WAIVER OF JURY TRIAL |
40 | ||||
| SECTION 9.07. |
Successors |
40 | ||||
| SECTION 9.08. |
Counterparts |
40 | ||||
| SECTION 9.09. |
Reserved |
41 | ||||
| SECTION 9.10. |
No Personal Liability |
41 | ||||
| SECTION 9.11. |
Concerning the Trustee |
41 | ||||
| SECTION 9.12. |
Severability |
42 | ||||
| SECTION 9.13. |
FATCA |
42 | ||||
| EXHIBITS AND SCHEDULES | ||||||
| EXHIBIT A |
FORM OF NOTE |
A-1 | ||||
| EXHIBIT B |
FORM OF GUARANTEE |
B-1 | ||||
| SCHEDULE I |
GUARANTORS |
I-1 | ||||
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SIXTEENTH SUPPLEMENTAL INDENTURE, dated as of October 15, 2026 (the “Supplemental Indenture”), to Indenture, dated as of December 31, 1997, among Lennar Corporation (the “Company”), a Delaware corporation having its principal office at 5505 Waterford District Drive, Miami, Florida 33126, each of the Guarantors named herein, and The Bank of New York Mellon, a New York banking corporation which has its principal corporate trust office at 240 Greenwich Street, New York, NY 10286, as successor Trustee (the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to The First National Bank of Chicago, N.A., as trustee, an Indenture, dated as of December 31, 1997 (the “Indenture”), providing for the issuance from time to time of its notes and other evidences of unsecured indebtedness, to be issued in one or more series as therein provided (“Securities”);
WHEREAS, Bank One Trust Company, N.A. succeeded to the rights and obligations of The First National Bank of Chicago, N.A. under the Indenture;
WHEREAS, J.P. Morgan Trust Company, N.A. succeeded to the rights and obligations of Bank One Trust Company, N.A. under the Indenture;
WHEREAS, The Bank of New York Mellon Trust Company, N.A. succeeded to the rights and obligations of J.P. Morgan Trust Company, N.A. under the Indenture;
WHEREAS, The Bank of New York Mellon succeeded to the rights and obligations of The Bank of New York Mellon Trust Company, N.A. under the Indenture and, as a result of such succession, The Bank of New York Mellon is currently acting as the Trustee under the Indenture and this Supplemental Indenture;
WHEREAS, Section 2.02 of the Indenture provides that the Company and the Trustee, at any time and from time to time, may enter into an indenture which supplements the Indenture to establish the terms of Securities of any series;
WHEREAS, the Company has duly authorized the creation of an issue of Securities to be known as the 5.700% Senior Notes due 2029 (the “Notes”) and to be guaranteed by the Guarantors, and to provide therefor the Company and the Guarantors have duly authorized the execution and delivery of this Supplemental Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered hereunder, the valid obligations of the Company, and to make this Supplemental Indenture a valid agreement of the Company and the Guarantors, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS SIXTEENTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders of the Notes, as follows:
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ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed to them in the Indenture. In the case of capitalized terms defined in this Supplemental Indenture that are also defined in the Indenture, the meanings ascribed to such terms in this Supplemental Indenture shall apply with respect to the Notes.
For purposes of this Supplemental Indenture, the following terms have the meanings ascribed to them as follows:
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” means any Registrar, Paying Agent or co-Registrar.
“Agent Members” has the meaning provided in Section 2.07(2).
“Bankruptcy Law” means Title 11 of the United States Code or any similar United States Federal or State law for the relief of debtors.
“Board of Directors” means the Board of Directors of the Company.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday which is not a Legal Holiday in New York, New York.
“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that only those leases that would constitute capital leases in conformity with GAAP as of December 31, 2018 shall be considered capital leases for purposes of all financial definitions and calculations for purpose of this Indenture.
“Capital Markets Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the Securities Act, (b) a private placement to institutional investors that is resold in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the SEC or (c) a private placement to institutional investors. For the avoidance of doubt, the term “Capital Markets Indebtedness” does not include any Indebtedness under the Notes or the Credit Facilities, Indebtedness incurred in connection with a sale and leaseback transaction, Indebtedness incurred in the ordinary course of business of the Company, Capital Lease Obligations or recourse transfer of any financial asset or any other type of Indebtedness incurred in a manner not customarily viewed as a “securities offering.”
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“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 the Issue Date.
“Change of Control Offer” has the meaning provided in Section 4.09(1).
“Change of Control Payment” has the meaning provided in Section 4.09(1).
“Change of Control Payment Date” has the meaning provided in Section 4.09(1).
“Class A Common Stock” shall mean the Company’s Class A common stock, par value $.10 per share.
“Consolidated Net Tangible Assets” means the total amount of assets which would be included on a consolidated balance sheet of the Company and the Restricted Subsidiaries under GAAP (less applicable reserves and other properly deductible items) after deducting therefrom:
(1) all short-term liabilities, i.e., liabilities payable by their terms less than one year from the date of determination and not renewable or extendable at the option of the obligor for a period ending more than one year after such date, and liabilities in respect of retiree benefits other than pensions for which the Restricted Subsidiaries are required to accrue pursuant to ASC No. 715;
(2) investments in Subsidiaries that are not Restricted Subsidiaries; and
(3) all assets reflected on the Company’s balance sheet as the carrying value of goodwill, trade names, trademarks, patents, unamortized debt discount, unamortized expense incurred in the issuance of debt and other intangible assets.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, New York, NY 10286, Attention: Corporate Trust Administration, with a copy to:
The Bank of New York Mellon
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Logan Zamperini, Corporate Trust Administration
or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
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“Credit Facilities” means the Revolving Credit Agreement and the Delayed Draw Term Loan Credit Agreement.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Default” means any event which upon the giving of notice or the passage of time, or both, would be an Event of Default.
“Default Interest Payment Date” has the meaning provided in Section 2.03.
“Delayed Draw Term Loan Credit Agreement” means that certain Delayed Draw Term Loan Credit Agreement, dated as of May 14, 2025, by and among, inter alios, among the Company, the several banks and other financial institutions or entities from time to time parties thereto, and JPMorgan Chase Bank, N.A., as the administrative agent, together with the related documents thereto (including the term loans thereunder and reimbursement obligations related thereto and any guarantees), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
“Depositary” means The Depository Trust Company, its nominees and successors.
“Event of Default” has the meaning provided in Section 5.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Funded Debt” of any Person means all Indebtedness for borrowed money created, incurred, assumed or guaranteed in any manner by such Person, and all Indebtedness, contingent or otherwise, incurred or assumed by such Person in connection with the acquisition of any business, property or asset, which in each case matures more than one year after, or which by its terms is renewable or extendible or payable out of the proceeds of similar Indebtedness incurred pursuant to the terms of any revolving credit agreement or any similar agreement at the option of such Person for a period ending more than one year after the date as of which Funded Debt is being determined; provided, that, Funded Debt shall not include (i) any Indebtedness for the payment, redemption or satisfaction of which money (or evidences of Indebtedness, if permitted under the instrument creating or evidencing such Indebtedness) in the necessary amount shall have been irrevocably deposited in trust with a trustee or proper depositary either on or before the maturity or redemption date thereof or (ii) any Indebtedness of such Person to any of its subsidiaries or of any subsidiary to such Person or any other subsidiary or (iii) any Indebtedness incurred in connection with the financing of operating, construction or acquisition projects; provided, that, the recourse for such Indebtedness is limited to the assets of such projects.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect on the Issue Date; provided that the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capital Lease Obligations.
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“Global Note” has the meaning provided in Section 2.01(1).
“Guarantee” has the meaning provided in Section 8.01.
“Guarantor” means (a) initially, each of the Guarantors set forth on Schedule I to this Supplemental Indenture, and (b) each of the Company’s Subsidiaries that in the future executes a Guarantee in substantially the form of Exhibit B hereto in which such Subsidiary agrees to be bound by the terms hereof as Guarantor, in each case, subject to release as provided in Article Eight.
“Holder” means a Person in whose name a Note is registered on the Registrar’s books.
“Indebtedness” means, with respect to the Company or any Subsidiary, and without duplication, (a) the principal of and premium, if any, and interest on, and fees, costs, enforcement expenses, collateral protection expenses and other reimbursement or indemnity obligations in respect to all indebtedness or obligations of the Company or any Subsidiary to any Person, including but not limited to banks and other lending institutions, for money borrowed that is evidenced by a note, bond, debenture, loan agreement, or similar instrument or agreement (including purchase money obligations with original maturities in excess of one year and noncontingent reimbursement obligations in respect of amounts paid under letters of credit); (b) all reimbursement obligations and other liabilities (contingent or otherwise) of the Company or any Subsidiary with respect to letters of credit, bank guarantees or bankers’ acceptances; (c) all obligations and liabilities (contingent or otherwise) in respect of leases of the Company or any Subsidiary required, in conformity with GAAP, to be accounted for as Capital Lease Obligations on the balance sheet of the Company; (d) any Indebtedness of others described in clauses (a) through (c) that the Company or such Subsidiary has guaranteed to the extent of such guarantee; (e) any Indebtedness of others described in clauses (a) through (c) secured by any Lien existing on property which is owned or held by the Company or such Subsidiary, regardless of whether the Indebtedness or other obligation secured thereby shall have been assumed by the Company or such Subsidiary; provided that the amount of Indebtedness of such Person shall be the lesser of (a) the fair market value of such property and (b) the amount of such Indebtedness of such other Persons; and (f) any and all deferrals, renewals, extensions and refinancing of, or amendments, modifications or supplements to, any Indebtedness, obligation or liability of the kind described in clauses (a) through (e).
“Indenture” has the meaning provided in the Recitals.
“Interest Payment Date” means the stated maturity of an installment of interest on the Notes.
“Issue Date” means October 15, 2026.
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions or trust companies are authorized or required by law to remain closed.
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“Lien” means any mortgage, pledge, lien, encumbrance, charge or security interest of any kind.
“Maturity Date” means October 15, 2029.
“Non-Recourse Indebtedness” means any Indebtedness of the Company or any Restricted Subsidiary for which the holder of such Indebtedness has no recourse, directly or indirectly, to the Company or such Restricted Subsidiary for the principal of, premium, if any, and interest on such Indebtedness, and for which the Company or such Restricted Subsidiary is not, directly or indirectly, obligated or otherwise liable for the principal of, premium, if any, and interest on such Indebtedness, except pursuant to mortgages, deeds of trust or other security interests or other recourse, obligations or liabilities, in respect of specific land or other real property interests of the Company or such Restricted Subsidiary securing such Indebtedness; provided, that, recourse, obligations or liabilities solely for indemnities, breaches of warranties or representations contained in such mortgages, deeds of trust or grants of security interests in respect of Indebtedness, will not prevent that Indebtedness from being classified as Non-Recourse Indebtedness.
“Notes” has the meaning provided in the Recitals.
“Obligations” means all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing the Notes.
“Officer” means the Chairman of the Board, any Vice Chairman of the Board, any Chief Executive Officer, any President, any Executive Vice President or Vice President, the Treasurer, the Secretary, the Controller or any Assistant Secretary of a Person.
“Paying Agent” means the office or agency designated by the Company where Notes may be presented for payment.
“Permitted Liens” has the meaning provided in Section 4.06.
“Permitted Sale-Leaseback Transactions” has the meaning provided in Section 4.07.
“Physical Notes” has the meaning provided in Section 2.01(2).
“Property” of any Person means all types of real, personal, tangible, intangible or mixed property owned by such Person, whether or not included in the most recent consolidated balance sheet of such Person and its Subsidiaries under GAAP.
“Record Date” means the Record Date specified in the Notes.
“Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Supplemental Indenture.
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“Redemption Price” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Supplemental Indenture and the Notes. For the avoidance of doubt, the Redemption Price excludes accrued interest to the Redemption Date.
“Repurchase Price” means, with respect to any Note to be repurchased, the price at which it is to be repurchased pursuant to Section 4.09 of this Supplemental Indenture.
“Restricted Subsidiary” means (a) all existing wholly-owned Subsidiaries (i.e., directly or indirectly 100% owned), other than finance company Subsidiaries and any foreign Subsidiaries, and (b) all future wholly-owned Subsidiaries (i.e., directly or indirectly 100% owned) that become Guarantors, in each case, until such time as such Subsidiary is released in accordance with the terms of this Supplemental Indenture.
“Revolving Credit Agreement” means that certain Ninth Amended and Restated Credit Agreement, dated as of November 25, 2024, by and among, inter alios, among the Company, the several banks and other financial institutions or entities from time to time parties thereto, and JPMorgan Chase Bank, N.A., as the issuing lender and the administrative agent, together with the related documents thereto (including the revolving loans thereunder, any letters of credit and reimbursement obligations related thereto and any guarantees), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
“Sale-Leaseback Transaction” means a sale or transfer made by the Company or a Restricted Subsidiary of any property which is either (A) a manufacturing facility, project club house, amenity center and common area, office building, warehouse or distribution facility whose book value equals or exceeds 1% of Consolidated Net Tangible Assets as of the date of determination, or (B) another property (not including a model home) or group of properties which exceeds 5% of Consolidated Net Tangible Assets as of the date of determination, if such sale or transfer is made with the agreement, commitment or intention of leasing such property to the Company or a Restricted Subsidiary.
“Securities” has the meaning provided in the Recitals.
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Subsidiary” means any Subsidiary of the Company which would constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X under the Securities Act and the Exchange Act.
“Subsidiary” means (i) a corporation or other entity of which a majority in voting power of the stock or other interests is owned by the Company, by a Subsidiary of the Company or by the Company and one or more Subsidiaries of the Company or (ii) a partnership, the sole general partner or partners of which are the Company and/or any Subsidiary and of which the Company or any Subsidiary owns at least 25% in value of the equity.
“Supplemental Indenture” has the meaning provided in the Preamble.
-7-
“Total Consolidated Stockholders’ Equity” means, with respect to any date of determination, the Company’s total consolidated stockholders’ equity as shown on its most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated condensed balance sheet contained in a quarterly report on Form 10-Q.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
(1) The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
(2) If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon
-8-
the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Trustee” means the person named as such in this Supplemental Indenture and, subject to the provisions of Article Seven of the Indenture, any successor to that person.
“Trust Officer” means any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, senior associate, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of the Indenture and this Supplemental Indenture.
“U.S. Government Obligations” means direct obligations of, and obligations guaranteed by, the United States of America for the payment of which the full faith and credit of the United States of America is pledged.
“U.S. Legal Tender” means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.
SECTION 1.02. Additional Rules of Construction. In addition to the rules of construction set forth in Section 1.03 of the Indenture:
(a) “herein,” “hereof” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(b) references in this Supplemental Indenture to section numbers shall be deemed to be references to section numbers of this Supplemental Indenture unless otherwise specified; and
(c) any reference to a statute, law or regulation means that statute, law or regulation as amended and in effect from time to time and includes any successor statute, law or regulation; provided, that, any reference to the Bankruptcy Law shall mean the Bankruptcy Law as applicable to the relevant case.
ARTICLE TWO
THE NOTES
SECTION 2.01. Creation of Series. In accordance with Section 2.01 and Section 2.02 of the Indenture, there is hereby created a series of Securities under the Indenture entitled “5.700% Senior Notes due 2029”.
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(1) The Notes shall be issued in the form of one or more permanent global Notes in registered form, substantially in the form set forth in Exhibit A (each, a “Global Note”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in Section 2.07(1). The aggregate principal amount of a Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter provided. The terms and provisions contained in the Notes annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
(2) Notes issued in exchange for interests in a Global Note pursuant to Section 2.07 may be issued in the form of permanent certificated Notes in registered form in substantially the form set forth in Exhibit A (the “Physical Notes”).
(3) Subject to Section 2.02 of the Indenture and applicable law, the aggregate principal amount of the Notes which may be authenticated and delivered on the Issue Date shall not exceed $300,000,000; provided, that, the Company may, without notice to or the consent of the Holders, issue additional Notes under this Supplemental Indenture at any time hereafter and may issue Securities of any other series under the Indenture at any time hereafter. The Trustee shall authenticate all Notes from time to time upon a written order of the Company in the form of an Officers’ Certificate. Each such written order shall specify the amount of the Notes to be authenticated and the date on which the Notes are to be authenticated, whether the Notes are to be Physical Notes and such other information as the Trustee may reasonably request.
(4) The aggregate principal amount of the Notes shall be payable on the Maturity Date unless earlier repaid in accordance with this Supplemental Indenture.
(5) Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Issue Date. The Company shall pay interest semi-annually in arrears on each Interest Payment Date, commencing on April 15, 2027. Interest shall be computed on the basis of a 360-day year of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed.
(6) If any payment on the Notes is due on a day other than a Business Day, such payment may be made on the next succeeding Business Day with the same force and effect as if made on the date that the relevant payment was due, and no interest shall accrue for the intervening period.
(7) All amounts payable in connection with the Notes shall be denominated and payable in the lawful currency of the United States.
(8) The Notes shall be payable, and may be presented for registration of transfer and exchange, without service charge, at the office of the Company maintained for such purpose in New York, New York, which shall initially be the office or agency of the Trustee.
(9) The Notes shall not be convertible into any class of capital stock of the Company.
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(10) In the event that Notes are authenticated and delivered subsequent to the date hereof pursuant to Section 2.01(3) hereof, such Notes will have the same terms and conditions (other than the issuance and the public offering price and, under certain circumstances, the date from which interest thereon will begin to accrue and the initial interest payment date) and will have the same CUSIP number as the Notes issued on the date hereof (assuming such Notes issued subsequent to the Issue Date are fungible with the previously issued Notes for U.S. federal income tax purposes).
(11) Notwithstanding the foregoing, all Notes issued under this Supplemental Indenture shall vote and consent together on all matters (as to which any of such Notes may vote or consent) as the same series and no Notes issued subsequent to the date hereof will have the right to vote or consent as a separate series on any matter.
(12) If, on a Redemption Date, a Change of Control Payment Date or the Maturity Date, the Paying Agent holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the principal, premium, if any, and interest due on the Notes payable on that date and is not prohibited from paying such money to the Holders pursuant to the terms of the Indenture and this Supplemental Indenture, then on and after that date such Notes shall be deemed not to be outstanding and interest on them shall cease to accrue.
(13) The terms of this Section 2.01(13) will govern with respect to the Notes in lieu of Section 2.04 of the Indenture. An Officer will sign the Notes for the Company by manual or electronic signature. If an Officer whose signature is on a Note no longer holds office at the time the Trustee authenticates such Note, such Note will nevertheless be valid. A Note will not be valid until an authorized signatory of the Trustee signs the certificate of authentication on such Note by manual or electronic signature. The signature will be conclusive evidence that such Note has been authenticated under the Indenture and this Supplemental Indenture.
SECTION 2.02. Optional Redemption by the Company.
(1) Right to Redeem; Notice to Trustee. The Company, at its option, may redeem the Notes in accordance with the provisions of paragraphs 5 and 6 of the Notes. If the Company elects to redeem Notes pursuant to paragraph 5 of the Notes, it shall notify the Trustee in writing as provided in Section 2.02(2) below. The Company shall give the notice to the Trustee provided for in this Section 2.02(1) at least 15 days but not more than 90 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).
(2) Notice of Redemption. Subject to Section 2.02(5), at least 10 days but not more than 60 days before a Redemption Date, the Company shall mail or electronically deliver (or otherwise transmit in accordance with the procedures of the Depositary) a notice of redemption to the Trustee and to each Holder of Notes to be redeemed. The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price that would be in effect if such Notes were being redeemed on the date of the notice;
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(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be presented and surrendered to the Paying Agent to collect the Redemption Price and any accrued interest;
(e) that interest on Notes called for redemption shall cease to accrue on and after the Redemption Date and, unless the Company defaults in making the redemption payment, the only remaining right of the Holder shall be to receive payment of the Redemption Price upon presentation and surrender to the Paying Agent of the Notes;
(f) if fewer than all the outstanding Notes are to be redeemed, the certificate number (if any) and principal amounts of the particular Notes to be redeemed;
(g) if the redemption is subject to one or more conditions precedent, a description of such condition precedent and the consequences to the redemption if such condition is not met; and
(h) the CUSIP number or numbers for the Notes called for redemption.
At the Company’s request, delivered at least 5 Business Days prior to the date such notice is to be given (unless a shorter period shall be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company will provide the Trustee with the notice to be delivered to the Holders, which shall contain the information required by clauses (a) through (h).
(3) Effect of Notice of Redemption. Subject to Section 2.02(5), once notice of redemption is given, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice and, upon presentation and surrender to the Paying Agent, Notes called for redemption shall be paid at the Redemption Price, together with any accrued interest.
(4) Sinking Fund. There shall be no sinking fund provided for the Notes.
(5) Notice of any redemption of Notes in connection with a transaction or an event may, at the Company’s discretion, be given prior to the completion or the occurrence thereof. Any redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of a related transaction or event. At the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed. The Company will provide written notice to the Trustee as soon as practicable but in any event no later than 2 days prior to the Redemption Date if any such redemption has been rescinded or delayed, and upon receipt and at the Company’s request the Trustee will provide such notice to each Holder of the Notes to be redeemed in the same manner in which the notice of redemption was given.
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SECTION 2.03. Defaulted Interest. The Company shall pay from time to time on demand (i) interest on overdue principal and (ii) to the extent lawful, interest on overdue installments of interest (without regard to any applicable grace periods), in each case, at the rate of interest borne by the Notes, plus 1% per annum from and including the relevant payment date to but excluding the date on which such defaulted amounts shall have been paid by the Company. All such interest will be computed on the basis of a 360-day year comprised of twelve 30-day months, and, in the case of a partial month, the actual number of days elapsed.
If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, which special record date shall be the fifteenth day next preceding the date fixed by the Company for the payment of defaulted interest or the next succeeding Business Day if such date is not a Business Day. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment (a “Default Interest Payment Date”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section; provided, that, in no event shall the Company deposit monies proposed to be paid in respect of defaulted interest later than 11:00 a.m. New York City time on the proposed Default Interest Payment Date. At least 15 days before the subsequent special record date, the Company shall send (or cause to be sent) to each Holder, as of a recent date selected by the Company, with a copy to the Trustee at least 20 days prior to such special record date, a notice that states the subsequent special record date, the Default Interest Payment Date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid. Notwithstanding the foregoing, any interest that is paid prior to the expiration of the 30-day period set forth in Section 5.01(1) of this Supplemental Indenture shall be paid to Holders as of the regular record date for the Interest Payment Date for which interest has not been paid. Notwithstanding the foregoing, the Company may make payment of any defaulted interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange.
SECTION 2.04. CUSIP Number. In issuing the Notes, the Company may use a “CUSIP” number, and, if so, the Company shall use the CUSIP number in notices of redemption or exchange as a convenience to Holders; provided, that, any such notice may state that no representation is thereby deemed to be made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the CUSIP number.
SECTION 2.05. Deposit of Monies. Prior to 11:00 a.m. New York City time on each Interest Payment Date, Maturity Date, Change of Control Payment Date or Redemption Date, the Company shall have deposited with the Paying Agent in immediately available funds money sufficient to make cash payments, if any, due on such Interest Payment Date, Maturity Date, Change of Control Payment Date or Redemption Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date, Maturity Date, Change of Control Payment Date or Redemption Date, as the case may be.
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SECTION 2.06. Transfer and Exchange. Subject to Section 2.07, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met; provided, that, the Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee and the Registrar or co-Registrar, duly executed by the Holder thereof or such Holder’s attorney duly authorized in writing. To permit registration of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes at the Registrar’s or co-Registrar’s request. No service charge shall be made for any registration of transfer or exchange, but the Company and the Trustee may require payment of a sum sufficient to cover any transfer tax, fee or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchanges or transfers pursuant to Section 2.11 of the Indenture or Section 2.02 hereof, in which event the Company shall be responsible for the payment of such taxes or charges).
The Registrar or co-Registrar shall not be required to register the transfer of or exchange of any Note (i) during a period beginning at the opening of business 15 days before the sending of a notice of redemption of Notes and ending at the close of business on the day such notice is sent and (ii) selected for redemption in whole or in part pursuant to Section 2.02, except the unredeemed portion of any Note being redeemed in part.
Any holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial interest, agrees that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest in the Note must be reflected in such book-entry system.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed hereunder, under the Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 2.07. Book-Entry Provisions for Global Notes.
(1) The Global Notes initially shall (a) be registered in the name of the Depositary or the nominee of such Depositary, (b) be delivered to the Trustee as custodian for such Depositary and (c) bear the following legend:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
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OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. REPRESENTATIVE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
(2) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture or this Supplemental Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Notes, and the Depositary may be treated by the Company, the Trustee and any Agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any Agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
(3) Transfers of a Global Note shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Note may be transferred or exchanged for Physical Notes in accordance with the rules and procedures of the Depositary; provided, that, Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Notes and a successor depositary is not appointed by the Company within 90 days of such notice, (ii) the Company discontinues the use of the system of book-entry transfer through the Depositary or any successor thereto or (iii) an Event of Default has occurred and is continuing and the Registrar has received a written request from the Depositary to issue Physical Notes.
(4) In connection with any transfer or exchange of a portion of the beneficial interest in a Global Note to beneficial owners pursuant to Section 2.07(3), the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute and the Trustee, upon receipt of a written order from the Company, shall authenticate and deliver, one or more Physical Notes of like tenor and amount.
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(5) In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.07(3), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute and the Trustee, upon receipt of a written order from the Company, shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations.
(6) The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture, this Supplemental Indenture or the Notes.
(7) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
SECTION 2.08. Denominations. The Notes shall be issued in minimum denominations of $2,000 and in any integral multiples of $1,000 in excess thereof.
ARTICLE THREE
SUCCESSOR CORPORATION
The terms of this Article Three shall govern with respect to the Notes in lieu of Article Five of the Indenture.
SECTION 3.01. Company May Consolidate, etc., Only on Certain Terms. The Company will not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by the consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety will be a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and expressly assumes, by one or more supplemental indentures, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest, if any, on all the Notes and the performance of every covenant of the Indenture and this Supplemental Indenture to be performed or observed by the Company;
(2) immediately after giving effect to the transaction, no Default or Event of Default will have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, conveyance, transfer or lease and the supplemental indenture (or the supplemental indentures together) comply with this Article Three and that all the conditions precedent relating to the transaction set forth in this Section 3.01 have been fulfilled.
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SECTION 3.02. Successor Corporation Substituted. Upon any event described in Section 3.01, the successor corporation will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture and this Supplemental Indenture, and, except in connection with a lease transaction, the predecessor corporation will be relieved of all obligations and covenants under the Indenture and this Supplemental Indenture.
ARTICLE FOUR
ADDITIONAL COVENANTS
SECTION 4.01. Payment of Notes. The Company will promptly pay or cause to be paid the principal of, premium, if any, and interest, if any, on each of the Notes at the places and time and in the manner provided in the Notes and this Supplemental Indenture. An installment of principal, premium or interest will be considered paid on the date it is due if the Trustee or Paying Agent holds on that date in accordance with this Supplemental Indenture money designated for and sufficient to pay the installment then due. The Company will pay or cause to be paid interest on overdue principal at the rate specified in the Notes; it will also pay interest on overdue installments of interest at the same rate, to the extent lawful.
SECTION 4.02. Reporting. The Company will file with the Trustee within 15 days after filing with the SEC, copies of its annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also will comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates); provided, that, the Trustee will be deemed to have actual knowledge of any Event of Default or Default set forth in any Officers’ Certificate delivered to a Trust Officer in the Corporate Trust Office pursuant to Section 4.04.
If at any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall furnish to Holders and prospective investors, upon request, any information required to be delivered pursuant to Rule 144A(d)(4) of the Securities Act, so long as the Notes are not freely transferable under the Securities Act.
SECTION 4.03. Corporate Existence. Subject to Article Three of this Supplemental Indenture, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, that, the Company will not be required to preserve any such right or franchise if the Board of Directors determines that the preservation of the right or franchise is no longer desirable in the conduct of the business of the Company and that its loss will not be disadvantageous in any material respect to the Holders.
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SECTION 4.04. Compliance Certificate. The Company will deliver to the Trustee within 120 days after the end of each Fiscal Year of the Company an Officers’ Certificate stating that in the course of the performance by the authorized signers of their duties as Officers of the Company they would normally have knowledge of any Default or Event of Default by the Company and whether or not the authorized signers know of any Default or Event of Default that occurred during the Fiscal Year. If they do, the Officers’ Certificate will describe the Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also will comply with TIA Section 314(a)(4). For the purposes of this Section 4.04, compliance is determined without regard to any grace period or requirement of notice under the Indenture or this Supplemental Indenture.
SECTION 4.05. Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture or this Supplemental Indenture.
SECTION 4.06. Limitations on Liens. The Company shall not, nor shall it permit any Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien that secures obligations under any Indebtedness, upon any of the Company’s or such Restricted Subsidiary’s properties or assets, whether owned on the Issue Date or thereafter acquired, unless (1) if such Lien secures Indebtedness which is ranking equal in right of payment with the Notes, then the Notes are secured by a Lien on the same properties or assets on an equal and ratable basis with the obligation so secured until such time as such obligation is no longer secured by a Lien, (2) if such Lien secures Indebtedness which is subordinated to the Notes, then the Notes are secured by a Lien on the same properties or assets and the Lien securing such Indebtedness is subordinated to the Lien granted to the Holders to the same extent as such Indebtedness is subordinated to the Notes or (3) such Lien is a Permitted Lien (as defined below).
The following Liens constitute “Permitted Liens”:
(1) Liens on property of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by the Company or any Restricted Subsidiary; provided, that, such Liens were in existence prior to, and were not created in contemplation of, such merger, consolidation or acquisition and do not extend to any assets other than those of the Person merged into or consolidated with the Company or a Restricted Subsidiary;
(2) Liens on property existing at the time of acquisition thereof by the Company or any Restricted Subsidiary; provided, that, such Liens were in existence prior to, and were not created in contemplation of, such acquisition and do not extend to any assets other than the property acquired;
(3) Liens imposed by law such as carriers’, warehouseman’s or mechanics’ Liens, and other Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;
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(4) Liens incurred in connection with pollution control, industrial revenue, water, sewage or any similar bonds;
(5) Liens securing Indebtedness representing, or incurred to finance, the cost of acquiring, constructing or improving any assets; provided, that, the principal amount of such Indebtedness does not exceed 100% of such cost, including construction charges;
(6) Liens on model homes, homes held for sale, homes that are under construction or under contract for sale, contracts for the sale of homes, land (improved or unimproved), contracts for the sale of land, project club houses, amenity centers and common areas, manufacturing plants, warehouses, distribution facilities or office buildings, and fixtures and equipment located at or on any of the foregoing or leasehold or other interests in any of the foregoing;
(7) Liens securing community development district bonds or similar bonds issued by any governmental authority to accomplish similar purposes;
(8) Liens securing Indebtedness (A) between a Restricted Subsidiary and the Company, or (B) between Restricted Subsidiaries;
(9) Liens on assets and properties of joint ventures or limited partnerships that are not wholly-owned Subsidiaries of the Company or any of the Guarantors;
(10) Liens incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance or return-of-money bonds, surety bonds or other obligations of a like nature, in each case which are not incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the Company’s business taken as a whole;
(11) pledges or deposits under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of indebtedness) or leases to which the Company or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of the Company or of any Restricted Subsidiary or deposits for the payment of rent, in each case incurred in the ordinary course of business;
(12) Liens granted to any bank or other institution on the payments to be made to such institution by the Company or any Subsidiary pursuant to any interest rate swap or similar agreement or foreign currency hedge, exchange or similar agreement designed to provide protection against fluctuations in interest rates and currency exchange rates, respectively; provided, that, such agreements are entered into in, or are incidental to, the ordinary course of business;
(13) Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set off or similar rights and remedies;
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(14) Liens arising from the Uniform Commercial Code financing statements regarding leases;
(15) Liens securing Indebtedness incurred to finance the acquisition, construction, improvement, development or expansion of a property which are given within 180 days of the acquisition, construction, improvement, development or expansion of such property and which are limited to such property;
(16) Liens incurred in connection with Non-Recourse Indebtedness;
(17) Liens existing on the Issue Date;
(18) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided, that, any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor;
(19) Liens securing refinancing Indebtedness; provided, that, any such Lien does not extend to or cover any property or assets other than the property or assets securing Indebtedness so refunded, refinanced or extended;
(20) easements, rights-of-way and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, licenses, restrictions on the use of property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the Company’s properties subject thereto; and
(21) any extensions, substitutions, modifications, replacements or renewals of the Permitted Liens described above.
Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien upon any of its properties or assets without equally and ratably securing the Notes if, at the time the Indebtedness secured by the Lien is incurred, the aggregate amount of all Indebtedness then outstanding secured by such Lien and all other Liens which are not Permitted Liens, together with the aggregate net sale proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, does not exceed 20% of Consolidated Net Tangible Assets.
SECTION 4.07. Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(1) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s communities, homes held for sale, homes that are under construction or under contract for sale, land (improved or unimproved), project club houses, amenity centers and common areas, manufacturing plants, warehouses, distribution facilities or office buildings;
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(2) a Sale-Leaseback Transaction relating to a property entered into within 180 days after (a) the date of acquisition of such property by the Company or a Restricted Subsidiary or (b) the date of the completion of construction or commencement of full operations on such property, whichever is later;
(3) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to (a) the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) or (b) the purchase by the Company or any Restricted Subsidiary of property substantially similar to the property sold or transferred, in each case, proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(4) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Supplemental Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(5) a Sale-Leaseback Transaction between (a) the Company and any Restricted Subsidiary or (b) among Restricted Subsidiaries; provided, that, the lessor shall be the Company or a Restricted Subsidiary; and
(6) a Sale-Leaseback Transaction which has a lease of no more than three years in length.
Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction; provided, that, at the time of the Sale-Leaseback Transaction the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of Consolidated Net Tangible Assets.
SECTION 4.08. Furnishing Guarantees. The Company shall cause each existing or future wholly-owned Subsidiary (i.e., directly or indirectly 100% owned) that guarantees a Credit Facility or any Capital Markets Indebtedness of the Company or guarantees the obligations of any Subsidiary as a guarantor of either the Credit Facilities or any Capital Markets Indebtedness, in each case, individually in an aggregate principal amount in excess of $100 million to become a Guarantor by causing such Subsidiary, as promptly as practicable, but in any event not later than thirty (30) days after the date on which such Subsidiary becomes a guarantor of any such Indebtedness of the Company or any Subsidiary, to execute and deliver to the Trustee a Guarantee in substantially the form of Exhibit B hereto and the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in the Indenture and this Supplemental Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with (which counsel, as to factual matters, may rely on an Officers’ Certificate).
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SECTION 4.09. Change of Control.
(1) If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the Notes by notifying the Holders to that effect as described in Section 2.02 above, the Company shall make an offer (a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part of that Holder’s Notes on the terms set forth in this Section 4.09; provided, that, the Notes shall be repurchased in multiples of $1,000 and if any Holder elects to have less than all of its Notes repurchased by the Company, the unpurchased portion of the Notes shall be equal to $2,000 or an integral multiple of $1,000 in excess thereof. In a Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of repurchase (a “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall send a notice to Holders, describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date that notice is sent, other than as may be required by law (a “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date.
(2) On each Change of Control Payment Date, the Company shall, to the extent lawful:
(a) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(b) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(c) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased and that all conditions precedent provided for herein to the Change of Control Offer and to the repurchase by the Company of Notes pursuant to the Change of Control Offer have been complied with.
(3) The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party repurchases all Notes properly tendered and not withdrawn under its offer. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and
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regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions herein, the Company will comply with those securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Offer provisions herein by virtue of any such conflict.
(4) As used herein:
“Change of Control” means the occurrence of any of the following: (a) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and the assets of its Subsidiaries, taken as a whole, to any person, other than the Company or one of its Subsidiaries; (b) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s outstanding Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; or (c) the Company consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction.
Notwithstanding the foregoing, a transaction (or series of related transactions) will not be deemed to involve a Change of Control under clause (b) above if, either:
(i) (A) the Company becomes a direct or indirect wholly-owned Subsidiary of a holding company and (B)(1) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (2) the shares of the Company’s Voting Stock outstanding immediately prior to such transaction are converted into or exchanged for, a majority of the Voting Stock of such holding company immediately after giving effect to such transaction; or
(ii) (A) Stuart Miller, together with members of his immediate family, directly or indirectly, becomes the beneficial owner of more than 50%, but less than 66- 2/3%, of the Company’s outstanding Voting Stock, measured by voting power rather than number of shares, and (B) immediately after such transaction or transactions, the Class A Common Stock is listed for trading on the New York Stock Exchange or The Nasdaq Global Market.
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The term “person,” as used in this definition of Change of Control, has the meaning given thereto in Section 13(d)(3) of the Exchange Act.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Event.
“Fitch” means Fitch Inc. and its successors.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, and the equivalent investment grade credit rating from any replacement Rating Agency or Rating Agencies selected by the Company.
“Moody’s” means Moody’s Investors Service, Inc. and its successors.
“Rating Agencies” means (1) Moody’s, S&P and Fitch; and (2) if any of Moody’s, S&P or Fitch ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons beyond the Company’s control, a “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act that is selected by the Company (as certified by a resolution of the Board of Directors) as a replacement rating agency for Moody’s, S&P or Fitch, or all of them, as the case may be.
“Rating Event” means the rating on the Notes is lowered independently by each of the Rating Agencies and the Notes are rated below an Investment Grade Rating independently by each of the Rating Agencies, in any case on any day during the period (which period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) commencing the earlier of (1) the first public notice of the occurrence of a Change of Control and (2) the first public notice of the Company’s intention to effect a Change of Control and ending 60 days following consummation of such Change of Control; provided, that a Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at our request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Rating Event).
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, and its successors.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, the capital stock of that person that is at the time entitled to vote generally in the election of the board of directors of that person.
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ARTICLE FIVE
DEFAULTS AND REMEDIES
Except as set forth in this Article Five to the contrary, the terms in Article Six of the Indenture shall govern.
SECTION 5.01. Events of Default. Pursuant to Section 2.02(11) of the Indenture, any one of the following events shall constitute an “Event of Default” hereunder and thereunder whenever used with respect to the Notes in this Supplemental Indenture (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) a default by the Company in the payment when due of interest on the Notes, which default continues for a period of 30 days;
(2) a default by the Company in the payment when due of the principal or Redemption Price or Repurchase Price due with respect to the Notes;
(3) a default by the Company or any Guarantor with respect to its obligation to pay Indebtedness for money borrowed by the Company or such Guarantor existing under any mortgage, indenture or instrument (other than any Non-Recourse Indebtedness), which default shall have resulted in the acceleration of, or be a failure to pay at final maturity, Indebtedness aggregating more than $150 million, and such acceleration does not cease to exist, or such Indebtedness is not satisfied, in either case, within 30 days after such acceleration;
(4) a failure to perform any other covenant or warranty of the Company herein or in the Indenture, which continues for 60 days after written notice as provided in the last paragraph of this Section 5.01;
(5) [reserved];
(6) the Company or any Significant Subsidiary, pursuant to any Bankruptcy Law applicable to the Company or such Significant Subsidiary: (a) commences a voluntary case; (b) consents to the entry of an order for relief against it or them in an involuntary case against it or them; (c) consents to the appointment of a Custodian of it or them or for any substantial part of its or their property; or (d) makes a general assignment for the benefit of its or their creditors; or
(7) a court of competent jurisdiction enters an order or decree under any applicable Bankruptcy Law: (a) for relief in an involuntary case against the Company or any Significant Subsidiary; (b) appointing a Custodian of the Company or any Significant Subsidiary or for any substantial part of its or their respective property; or (c) ordering the winding up or liquidation of the Company or any Significant Subsidiary; and the order or decree remains unstayed and in effect for 90 days.
The Company will deliver to the Trustee, within 20 days after it occurs, written notice in the form of an Officers’ Certificate of any event of which the Company is aware which with the giving of notice and the lapse of time would become an Event of Default, its status and what action the Company is taking or proposes to take with respect to it.
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A Default under clause (4) of this Section 5.01 is not an Event of Default until the Holders of at least 25% in principal amount of the then outstanding Notes with regard to which the Company has failed to comply with a covenant or agreement notify the Company and the Trustee of the Default and the Company does not cure the Default within 60 days after the giving of the notice. The notice must reference the Indenture and this Supplemental Indenture and the Notes, specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.” The Company will deliver to the Trustee, within 20 days after it occurs, written notice in the form of an Officers’ Certificate of any event of which the Company is aware which with the giving of notice and the lapse of time would become an Event of Default under clause (4), its status and what action the Company is taking or proposes to take with respect to it.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default occurs and is continuing, unless the principal of the Notes has already become due and payable, the Trustee by notice to the Company, or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding by notice to the Company and the Trustee, may declare the outstanding principal of the Notes and any accrued and unpaid interest through the date of such declaration on all of the Notes to be immediately due and payable. Upon such a declaration, such outstanding principal amount and accrued and unpaid interest, if any, shall be due and payable immediately. If an Event of Default specified in Section 5.01(6) or Section 5.01(7) of this Supplemental Indenture occurs and is continuing, the outstanding principal amount of the Notes shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. The Holders of a majority in aggregate principal amount of the Notes then outstanding, on behalf of the Holders of all of the Notes, by notice to the Company and the Trustee (and without notice to any other Holder), may rescind any acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of the outstanding principal amount of any of the Notes that has become due solely as a result of acceleration and if all amounts due to the Trustee under Section 7.07 of the Indenture have been paid. No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereto.
In case the Trustee shall have proceeded to enforce any right under this Supplemental Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders of Notes, and the Trustee shall be restored respectively to their several positions and rights hereunder and all rights, remedies and powers of the Company, the Holders of Notes, and the Trustee shall continue as though no such proceeding had been taken.
The Trustee shall within 90 days after a Trust Officer has knowledge of the occurrence of a payment Default or written notice of any Event of Default, send to all Holders, as the names and addresses of such Holders appear upon the Note register, notice of all Defaults or Events of Default known to a Trust Officer, unless such Default or Event of Default is cured or waived before the giving of such notice; provided, that, except in the case of default in the payment of
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the principal, interest, Redemption Price or Repurchase Price, as the case may be, on any of the Notes, the Trustee shall be protected in withholding such notice if and so long as a trust committee of officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders; and provided, further, in the case of any Default under Section 5.01(3) of this Supplemental Indenture, no such notice to Holders shall be given until the end of the 30-day grace period referred to therein.
The Holders of a majority in principal amount of the Notes then outstanding shall have the right to direct the time, method and place of conducting any proceedings for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee, subject to the limitations specified in the Indenture and this Supplemental Indenture.
SECTION 5.03. Waiver of Existing Defaults. The Holders of a majority in aggregate principal amount of the Notes then outstanding, on behalf of the Holders of all the Notes, by notice to the Trustee may consent to the waiver of any past Default with regard to the Notes and its consequences except (i) a default in the payment of interest or premium, if any, on, or the principal of, Notes, (ii) a default arising from a failure to redeem or repurchase any Notes as required under this Supplemental Indenture or (iii) a default in respect of any covenant or a provision that under Section 9.02 of the Indenture or Section 7.02 of this Supplemental Indenture cannot be modified or amended without the consent of the Holders of all Notes then outstanding. The defaults described in clauses (i), (ii) and (iii) in the previous sentence may be waived with the consent of the Holders of all Notes then outstanding. When a Default or Event of Default is waived, it is deemed cured and not continuing, but no waiver will extend to any subsequent or other Default or impair any consequent right. Without limiting the provisions of Section 7.07 of the Indenture, the Trustee shall be compensated by the Company for all costs and expenses incurred by it in connection with any action taken by it pursuant to this Section 5.03.
SECTION 5.04. Limitation on Suits. Pursuant to Section 2.02(11) of the Indenture, no Holders of the Notes may pursue a remedy with respect to the Indenture or the Notes unless:
(1) such Holder gives to the Trustee written notice stating that an Event of Default as to the Notes is continuing;
(2) the Holders of at least a majority in principal amount of the Notes then outstanding make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity, and the Event of Default has not been waived; and
(5) the Trustee has received no contrary direction from the Holders of a majority in principal amount of the Notes then outstanding during such 60-day period.
No holder of the Notes may use the Indenture to prejudice the rights of another Holder of the Notes or to obtain a preference or priority over another Holder of the Notes.
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ARTICLE SIX
DISCHARGE OF SUPPLEMENTAL INDENTURE
Except as set forth in this Article Six to the contrary, the terms in Article Eight of the Indenture shall govern.
SECTION 6.01. Discharge of Supplemental Indenture. When (1) the Company shall deliver to the Trustee for cancellation all Notes theretofore authenticated (other than any Notes which have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled, or (2) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year, whether at stated maturity or upon redemption and the Company shall deposit with the Trustee, in trust, monies and/or U.S. Government Obligations sufficient to pay at the Maturity Date or Redemption Date, as applicable, all sums which will become due with regard to all Notes theretofore authenticated (other than any Notes which shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled or delivered to the Trustee for cancellation, including the principal amount and interest accrued to the Maturity Date or Redemption Date, as applicable, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then the Indenture and this Supplemental Indenture shall cease to be of further effect with respect to the Notes (except as to (i) remaining rights of registration of transfer, substitution and exchange of Notes, (ii) rights hereunder of Holders to receive payments of the principal amount, including interest due with respect to the Notes and the other rights, duties and obligations of Holders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (iii) the rights, obligations and immunities of the Trustee hereunder and under the Indenture with respect to the Notes), and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel as required by Section 6.05 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging the Indenture and this Supplemental Indenture with respect to the Notes; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee, and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee, in connection with the Indenture with respect to the Notes, this Supplemental Indenture or the Notes.
SECTION 6.02. Application of Trust Money. Subject to Section 6.03, the Trustee will hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 6.01. It will apply the deposited money and the money from the U.S. Government Obligations through the Paying Agent and in accordance with this Supplemental Indenture to the payment of principal of, premium, if any, and interest, if any, on the Notes with regard to which the money or U.S. Government Obligations were deposited. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 6.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Notes.
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SECTION 6.03. Repayment to the Company. The Trustee and the Paying Agent will promptly pay to the Company upon request any excess money or securities held by them at any time. The Trustee and the Paying Agent will pay to the Company upon request any money held by them for the payment of principal, premium or interest that remains unclaimed for two years. After such payment, all liability of the Trustee and the Paying Agent with respect to that money will cease.
SECTION 6.04. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 6.02 by reason of any order or judgment of any court of governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under the Indenture and this Supplemental Indenture shall be revived and reinstated with respect to the Notes as though no deposit had occurred pursuant to Section 6.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 6.02; provided, that, if the Company makes any payment of principal amount or Redemption Price or Repurchase Price of or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
SECTION 6.05. Officers’ Certificate; Opinion of Counsel. Upon any application or demand by the Company to the Trustee to take any action under Section 6.01, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in the Indenture and this Supplemental Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with (which counsel, as to factual matters, may rely on an Officers’ Certificate).
Each such Officers’ Certificate and Opinion of Counsel provided for in this Supplemental Indenture and delivered to the Trustee with respect to compliance with a condition or covenant pursuant to the previous paragraph shall comply with the provisions of Section 12.05 of the Indenture.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
Except as set forth in this Article Seven to the contrary, the terms in Article Nine of the Indenture shall govern.
SECTION 7.01. Without Consent of Holders. In addition to those matters described in Section 9.01 of the Indenture which permit the Company and the Trustee to amend or supplement the Indenture or the Notes without the consent of the Holders, the Company and the Trustee may amend or supplement the Indenture, this Supplemental Indenture or the Notes without the consent of the Holders:
(1) to cure any ambiguity, defect or inconsistency that does not adversely affect the rights of any Holder,
(2) to make any change that does not adversely affect the rights of any Holder,
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(3) to add to the covenants of the Company further covenants, restrictions or conditions that the Board of Directors shall consider to be for the benefit of the Holders of Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Supplemental Indenture;
(4) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes;
(5) to modify, eliminate or add to the provisions of this Supplemental Indenture to such extent as shall be necessary for this Supplemental Indenture to comply with the TIA, or under any similar federal statute hereafter enacted; or
(6) to conform the text of the Indenture, the Notes or any Guarantee of the Notes to any corresponding provisions of the “Description of Debt Securities” or “Description of Notes” or similar provisions in any prospectus or prospectus supplement filed with the SEC in respect of the Notes, including the Prospectus dated April 10, 2026 and the Prospectus Supplement dated October 13, 2026.
SECTION 7.02. With Consent of Holders. In addition to those matters described in Section 9.02 of the Indenture which require the consent of the Holder so affected to amend, supplement or waive any provision of the Indenture or this Supplemental Indenture, without the consent of each Holder so affected, no amendment, supplement or waiver (including a waiver pursuant to Section 5.03) may:
(1) extend the fixed maturity of any Note or any installment of interest thereon, reduce the principal amount, interest rate, Redemption Price, Repurchase Price or amount due upon acceleration, impair the right of a Holder to institute suit for the payment thereof or change the currency in which the Notes are payable,
(2) reduce the percentage of Notes the Holders of which are required to consent to an amendment, supplement or waiver,
(3) release any Guarantor except as provided in Article Eight hereof, or
(4) make any change in Section 5.02, Section 5.03 or this Section 7.02.
ARTICLE EIGHT
GUARANTEE OF NOTES
SECTION 8.01. Unconditional Guarantee. Except as provided in Section 8.02 or Section 8.04, each Guarantor hereby jointly and severally, unconditionally and irrevocably guarantees (such guarantee to be referred to herein as a “Guarantee”) to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, that: (a) all amounts due with respect to the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Notes and all other obligations of the
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Company or the Guarantors to the Holders or the Trustee hereunder, thereunder or under the Indenture and all other obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders under this Supplemental Indenture or under the Notes or the Indenture, 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 this Supplemental Indenture or the Notes shall constitute an event of default under each Guarantee, and shall entitle the Holders of Notes to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
Each of the Guarantors hereby agrees that, subject to Section 8.02 and Section 8.04, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes, this Supplemental Indenture or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each of the Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, this Supplemental Indenture, the Indenture and its Guarantee. Each Guarantee is a guarantee of payment and not of collection. Each Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (a) subject to this Article Eight, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of each 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 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of each Guarantee.
No director, officer, employee, incorporator, stockholder or partner, as such, past, present or future, of any Guarantor, as such, shall have any personal liability under any Guarantee by reason of his, her or its status as such director, officer, employee, incorporator, stockholder or partner.
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.
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SECTION 8.02. Limitations on Guarantees; Release of Particular Guarantors’ Obligations. 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 Guarantors in respect of the obligations of such other Guarantors under their respective Guarantees or pursuant to their contribution obligations under this Supplemental 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.
If any Guarantor is released from its guarantee under or otherwise no longer guarantees any Credit Facility (to the extent such guarantor guarantees any Credit Facility) or any Capital Markets Indebtedness which resulted in the obligation to provide such guarantee 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 and a Restricted Subsidiary. For the avoidance of doubt, the release of a Guarantor from its Guarantee of the Notes under this Article 8 may be conditioned upon the substantially concurrent release of a guarantee under a Credit Facility and/or Capital Market Indebtedness so long as after giving effect to all such transactions, a Guarantor is not required to Guarantee the Notes pursuant to Section 4.08.
To the extent requested by the Company, delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel, the Trustee shall execute such instruments reasonably requested by and prepared by the Company evidencing the release of a Guarantor from, and the termination of, its obligations under its Guarantee of the Notes under this Article Eight.
SECTION 8.03. Execution and Delivery of Guarantee. To further evidence the Guarantee set forth in Section 8.01, each Guarantor hereby agrees to execute and deliver to the Trustee a Guarantee in substantially the form of Exhibit B hereto. Such Guarantee shall be executed on behalf of each Guarantor by either manual or electronic signature of an officer or authorized signatory of each Guarantor, each of whom, in each case, shall have been duly authorized to so execute by all requisite corporate action. The validity and enforceability of any Guarantee shall not be affected by the fact that it is not affixed to any Note or Notes.
If an officer or authorized signatory of a Guarantor whose signature is on this Supplemental Indenture or a Guarantee no longer holds that office at the time the Trustee authenticates a Note to which such Guarantee relates or at any time thereafter, such Guarantor’s Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee set forth in this Supplemental Indenture on behalf of each Guarantor.
SECTION 8.04. Release of a Guarantor in Connection with a Sale. If no Default exists or would exist under the Indenture and this Supplemental Indenture, upon the sale or disposition of all or substantially all of the assets of a Guarantor, or all of the Capital Stock of a Guarantor (including by consolidation, merger, issuance or otherwise), 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 a Subsidiary), or if any Guarantor is dissolved or liquidated, such Guarantor and each Subsidiary of such Guarantor that is also a Guarantor, or the Person acquiring such assets (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor), shall be deemed automatically and unconditionally released and discharged from all of its obligations under this Article Eight without any further action required on the part of the Trustee or any Holder.
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Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel, each of which shall comply with the provisions of Section 12.05 of the Indenture, stating that all conditions precedent provided for in the Indenture and this Supplemental Indenture relating to the release of such Guarantor have been complied with (which counsel, as to factual matters, may rely on an Officers’ Certificate), 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 of the Notes under this Article Eight.
Nothing contained in the Indenture, this Supplemental Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.
SECTION 8.05. Waiver of Subrogation. Until this Supplemental Indenture is discharged and all of the Notes are discharged and paid in full, each Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company’s obligations under the Notes, this Supplemental Indenture or the Indenture and such Guarantor’s obligations under its Guarantee and this Supplemental Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy of the Holders against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and any amounts owing to the Trustee or the Holders of Notes under the Notes, this Supplemental Indenture, 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 this Supplemental Indenture. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Supplemental Indenture and that the waiver set forth in this Section 8.05 is knowingly made in contemplation of such benefits.
SECTION 8.06. No Set-Off. Each payment to be made by a Guarantor hereunder in respect of the 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.
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SECTION 8.07. 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 8.08. Obligations Continuing. Except as provided in Section 8.02 or Section 8.04, 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 and the Holders 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 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 8.09. Obligations Not Reduced. Except as otherwise provided in Section 8.02 and Section 8.04, 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 this Supplemental Indenture pursuant to Article Six be or become owing or payable under or by virtue of or otherwise in connection with the Notes, this Supplemental Indenture or the Indenture.
SECTION 8.10. 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 8.11. Obligations Not Affected. Except as otherwise provided in Section 8.02 and Section 8.04, 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:
(1) 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;
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(2) any irregularity, defect, unenforceability or invalidity in respect of any indebtedness or other obligation of the Company or any other Person under the Indenture, this Supplemental Indenture, the Notes or any other document or instrument;
(3) any failure of the Company, whether or not without fault on its part, to perform or comply with any of the provisions of this Supplemental Indenture, the Notes or the Indenture, or to give notice thereof to a Guarantor;
(4) 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;
(5) the granting of time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other Person;
(6) any change in the time, manner or place of payment of, or in any other term of, any of the Notes, or any other amendment, variation, supplement, replacement or waiver of, or any consent to departure from, any of the Notes, this Supplemental Indenture or the Indenture, including, without limitation, any increase or decrease in any amount due with respect to any of the Notes;
(7) any change in the ownership, control, name, objects, businesses, assets, capital structure or constitution of the Company or a Guarantor;
(8) any merger or amalgamation of the Company or a Guarantor with any Person or Persons;
(9) 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
(10) any other circumstance (other than by complete, irrevocable payment) that might otherwise constitute a legal or equitable discharge or defense of the Company under this Supplemental Indenture, the Notes or the Indenture or of a Guarantor in respect of its Guarantee hereunder.
SECTION 8.12. Waiver. Without in any way limiting the provisions of Section 8.01 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.
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SECTION 8.13. 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 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 or under this Supplemental Indenture.
SECTION 8.14. 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:
(1) grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other Person;
(2) take or abstain from taking security or collateral from the Company or from perfecting security or collateral of the Company;
(3) 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 this Supplemental Indenture or the Notes;
(4) accept compromises or arrangements from the Company;
(5) apply all monies at any time received from the Company or from any security upon such part of the Obligations 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
(6) 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 8.15. Default and Enforcement. If any Guarantor fails to pay in accordance with Section 8.01 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 8.16. Amendment, etc. No amendment, modification or waiver of any provision 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 or affect the obligations of any other Guarantor unless it is signed by such Guarantor and the Trustee.
SECTION 8.17. Acknowledgment. Each Guarantor hereby acknowledges communication of the terms of this Supplemental Indenture, the Notes and the Indenture and consents to and approves of the same.
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SECTION 8.18. Costs and Expenses. Each Guarantor shall pay on demand by the Trustee any and all costs, fees and expenses (including, without limitation, legal fees) incurred by the Trustee, its agents, advisors and counsel or any of the Holders in enforcing any of their rights under any Guarantee.
SECTION 8.19. 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, this Supplemental 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 Notes, the Indenture or the Guarantees, 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, the Notes or the Guarantees 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 this Supplemental Indenture, the Notes, the Indenture 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 8.20. 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 8.01 shall survive until the indefeasible payment in full of the Obligations 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 8.21. Guarantee in Addition to Other Obligations. The obligations of each Guarantor under its Guarantee and this Supplemental 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 this Supplemental Indenture or the Notes and any guarantees or security at any time held by or for the benefit of any of them.
SECTION 8.22. Severability. Any provision of this Article Eight 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 this Supplemental Indenture and this Article Eight.
SECTION 8.23. Successors and Assigns. Each Guarantee shall be binding upon and inure to the benefit of each Guarantor and the Trustee and the Holders and their respective successors and permitted assigns, except that no Guarantor may assign any of its Obligations hereunder or thereunder.
SECTION 8.24. Acknowledgement under TIA. Each Guarantor acknowledges that, by virtue of its Guarantee, it is becoming an “obligor” on indenture securities under the TIA.
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ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. TIA Controls. If any provision hereof limits, qualifies or conflicts with the duties imposed by Sections 310 through 317 of the TIA, the imposed duties shall control.
SECTION 9.02. Conflict with Indenture. To the extent not expressly amended or modified by this Supplemental Indenture, the Indenture shall remain in full force and effect. If any provision of this Supplemental Indenture relating to the Notes is inconsistent with any provision of the Indenture, the provision of this Supplemental Indenture shall control with regard to the Notes.
SECTION 9.03. Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by email, by telecopier or overnight courier guaranteeing next-day delivery or registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company or the Guarantors:
Lennar Corporation
5505 Waterford District Drive
Miami, Florida 33126
Attention: General Counsel
with a copy, which shall not constitute notice, to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Attention: Lillian Tsu
Email: lillian.tsu@cgsh.com
if to the Trustee:
The Bank of New York Mellon
240 Greenwich Street
New York, NY 10286
Attention: Corporate Trust Administration
Email: corpsov1@bny.com
With a copy to:
The Bank of New York Mellon
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Logan Zamperini or Corporate Trust Administration
Email: logan.zamperini@bny.com or corpsov1@bny.com
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Each of the Company, the Guarantors and the Trustee by written notice to the other may designate additional or different addresses for notices to such Person. Any notice or communication to the Company, the Guarantors or the Trustee shall be deemed to have been given or made as of the date so delivered if emailed or hand delivered; and five (5) calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed by first class mail, certified or registered return receipt requested, or by overnight courier guaranteeing next day delivery to its address as it appears on the registration books of the Registrar; provided, that, notices given to Holders holding Notes in book-entry form may be given through the facilities of the Depositary or any successor depository. Any notice or communication shall be mailed to any Person as described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
SECTION 9.04. Electronic Instructions/Directions. The Trustee and Paying Agent shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to the Indenture and delivered using Electronic Means (as defined below); provided, however, that the Company shall provide to the Trustee and Paying Agent an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee and Paying Agent Instructions using Electronic Means and the Trustee and Paying Agent, each in their discretion elect to act upon such Instructions, its understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee and Paying Agent cannot determine the identity of the actual sender of such Instructions and that the Trustee and Paying Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee and Paying Agent have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and Paying Agent and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee and Paying Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from their reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee and Paying Agent, including without limitation the risk of the Trustee and Paying Agent acting on unauthorized Instructions, and the risk of interception and misuse by
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third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and Paying Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee and Paying Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee and Paying Agent, or another method or system specified by the Trustee and Paying Agent as available for use in connection with its services hereunder.
SECTION 9.05. Governing Law. This Supplemental Indenture and the Notes, and any claim, controversy or dispute arising under or related to this Supplemental Indenture or the Notes or guarantees, shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the General Obligations Law of the State of New York, but otherwise without regard to conflict of laws rules that would apply the laws of any other jurisdiction. Each of the parties hereto agrees to submit to the jurisdiction of the courts of the State of New York sitting in the County of New York, in the Borough of Manhattan in New York City, or of the United States of America for the Southern District of New York in any action or proceeding arising out of or relating to this Supplemental Indenture or the Notes.
SECTION 9.06. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE GUARANTORS, EACH HOLDER BY PURCHASE OF ITS NOTE AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 9.07. Successors. All agreements of the Company in the Indenture, this Supplemental Indenture and the Notes shall bind its successors and permitted assigns. All agreements of the Trustee in the Indenture and this Supplemental Indenture shall bind its successors and permitted assigns.
SECTION 9.08. 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. Delivery of an executed counterpart by electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. The words “execution,” “signed,” “signature,” and words of like import in this Supplemental Indenture shall include images of manually executed signatures transmitted by electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means)
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shall be of the same legal effect, validity and enforceability as a manually executed signature (provided, any such electronic signature is a true representation of the signer’s actual signature) or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 9.09. Reserved
SECTION 9.10. No Personal Liability. No director, officer, employee, incorporator, stockholder or partner, as such, past, present or future, of the Company, any of its successor corporations or any Subsidiary of the foregoing shall have any liability for any Obligations of the Company under the Notes or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.
SECTION 9.11. Concerning the Trustee.
(1) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(2) Whenever in the administration of the Indenture or this Supplemental Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may conclusively rely upon an Officers’ Certificate and/or Opinion of Counsel.
(3) Subject to Section 7.01 of the Indenture, if an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture or this Supplemental Indenture at the request or direction of any of the Holders pursuant to this Supplemental Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee in its sole discretion against any loss, liability, or expense which might be incurred by it in compliance with such request or direction, and the Trustee shall have no liability for acting at the direction of requisite Holders.
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(4) In no event shall the Trustee be responsible or liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(5) Except with respect to an Event of Default listed in clause (1) or (2) of Section 5.01, the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer in the Corporate Trust Office of the Trustee has received written notice of any event which is in fact such a default, and such notice references the Notes, the Indenture and this Supplemental Indenture.
(6) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(7) Pursuant to Section 9.04 hereof, the Trustee may request that the Company deliver an incumbency certificate setting forth the names of individuals, direct dial telephone numbers, and titles of officers authorized at such time to take specified actions pursuant to the Indenture and this Supplemental Indenture.
(8) The Trustee may rely on and act in accordance with advice of counsel or an Opinion of Counsel without liability.
(9) The Trustee is entitled to reimbursement and indemnity as set forth in Article VII of the Indenture, except to the extent any loss, expense or liability was incurred due to the Trustee’s own negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable order.
SECTION 9.12. Severability. In case any one or more of the provisions in this Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 9.13. FATCA. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to the Indenture and this Supplemental Indenture, the Company agrees (a) to provide to The Bank of New York Mellon upon its request information in the Company’s possession about applicable parties and/or transactions (including any modification to the terms of such transactions) so that The Bank of New York Mellon can determine whether it has tax related obligations under Applicable Law, and (b) that The Bank of New York Mellon shall be entitled to make any withholding or deduction from payments under the Indenture or this Supplemental Indenture to the extent necessary to comply with Applicable Law for which The Bank of New York Mellon shall not have any liability to the Company for its withholding or deduction from payment under the Indenture or this Supplemental Indenture to the extent necessary to comply with Applicable Law.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused it to be duly executed as of the day and year first above written.
| LENNAR CORPORATION | ||
| By: | /s/ Lauren Dudley | |
| Name: Lauren Dudley | ||
| Title: Vice President and Treasurer | ||
| Authorized signatory for each of the Guarantors listed on Schedule I hereto | ||
| By: | /s/ Katherine Lee Martin | |
| Name: Katherine Lee Martin | ||
| Title: Authorized Signatory | ||
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | /s/ Glenn G. McKeever | |
| Name: Glenn G. McKeever | ||
| Title: Vice President | ||
EXHIBIT A
FORM OF NOTE
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. REPRESENTATIVE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
CUSIP No.: 526057 CZ5
LENNAR CORPORATION
5.700% SENIOR NOTES DUE 2029
| No.___ | $_______ |
LENNAR CORPORATION, a Delaware corporation (the “Company,” which term includes any successor entities), for value received, promises to pay to CEDE & CO., or registered assigns, on October 15, 2029 (the “Maturity Date”), the principal amount of [ ] Dollars ($ ), together with interest thereon as hereinafter provided.
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
A-1
IN WITNESS WHEREOF, Lennar Corporation has caused this instrument to be duly executed manually or electronically.
| LENNAR CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
Dated: ________________________
A-2
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-
mentioned Indenture and Supplemental Indenture.
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
| Dated: |
| |
A-3
LENNAR CORPORATION
5.700% SENIOR NOTES DUE 2029
Capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture relating to the Notes, dated as of December 31, 1997 (as amended from time to time, the “Indenture”), between Lennar Corporation, a Delaware corporation (the “Company”), and The Bank of New York Mellon, as successor trustee (the “Trustee”), as amended and supplemented by the Supplemental Indenture described below.
| 1. | INTEREST |
The Company promises to pay interest on the principal amount of this Note at the rate per annum set forth above. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Issue Date. The Company shall pay interest semi-annually in arrears on each Interest Payment Date, commencing on April 15, 2027, on the Maturity Date and upon redemption. Interest will be computed on the basis of a 360-day year of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed.
Subject to the terms and conditions of the Supplemental Indenture, payments of the Redemption Price, Change of Control Payment, principal and interest that are not made when due will accrue interest per annum at the rate of interest borne by the Notes, plus 1%, from and including, the relevant payment date to, but excluding, the date on which such defaulted amounts shall have been paid by the Company in accordance with the Indenture; provided, however that if any payment on the Notes is due on a day other than a Business Day, such payment may be made on the next succeeding Business Day with the same force and effect as if made on the date that the relevant payment was due, and no interest shall accrue for the intervening period.
| 2. | METHOD OF PAYMENT |
Subject to the terms and conditions of the Supplemental Indenture, the Company shall (a) pay interest on the Notes (except defaulted interest) to the Persons who are the registered Holders of Notes at the close of business on the Record Date immediately preceding the Interest Payment Date even if the Notes are canceled, transferred or exchanged after such Record Date, and (b) make all other payments in respect of the Notes to the Persons who are registered Holders of Notes at the close of business on the Business Day preceding the Redemption Date or the Maturity Date, as the case may be. Holders must surrender Notes to a Paying Agent to collect such payments in respect of the Notes referred to in clause (b) of the preceding sentence. The Company shall pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make the cash payments by check payable in such money.
| 3. | PAYING AGENT AND REGISTRAR |
Initially, The Bank of New York Mellon, a New York banking corporation, shall act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Registrar or co-registrar.
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| 4. | SUPPLEMENTAL INDENTURE |
The Company is issuing the Notes under the Indenture, as amended and supplemented by the Sixteenth Supplemental Indenture, dated as of October 15, 2026 (as amended or supplemented, the “Supplemental Indenture”), among the Company, the Guarantors named therein and the Trustee. This Note is one of a duly authorized issue of Notes of the Company designated as its 5.700% Senior Notes due 2029 (the “Notes”). The Notes include the Notes to be issued on the Issue Date and any additional Notes issued under the Supplemental Indenture at any time thereafter, all of which Notes are treated as a single class of securities under the Indenture and the Supplemental Indenture.
The terms of the Notes include those stated in the Indenture and the Supplemental Indenture and those made part of the Indenture and the Supplemental Indenture by reference to the Trust Indenture Act of 1939 (the “TIA”), as in effect on the date of the Supplemental Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture, the Supplemental Indenture and the TIA for a statement of such terms. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture and the Supplemental Indenture, as the same may be amended from time to time in accordance with their respective terms.
The Notes are general unsecured, unsubordinated obligations of the Company in the aggregate principal amount of $300,000,000 to be issued on the Issue Date; provided, that, the Company may, without notice to or the consent of the Holders, issue additional Notes under the Supplemental Indenture at any time thereafter. Neither the Indenture nor the Supplemental Indenture limits other indebtedness of the Company.
| 5. | REDEMPTION AT THE OPTION OF THE COMPANY |
No sinking fund is provided for the Notes. Prior to September 15, 2029 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the Redemption Date, and |
| (2) | 100% of the principal amount of the Notes to be redeemed, plus, in either case, any accrued and unpaid interest thereon to, but excluding, the Redemption Date. |
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On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed plus any accrued and unpaid interest thereon to, but excluding, the Redemption Date. The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the Redemption Price promptly after the calculation thereof and the Trustee shall have no duty to determine, or verify the calculation of, the Redemption Price.
| 6. | NOTICE OF REDEMPTION AT THE OPTION OF THE COMPANY |
Notice of redemption at the option of the Company shall be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary (or another depositary’s) procedures) at least 10 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed. Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date interest will cease to accrue on the Notes or portions thereof called for redemption. In the case of a partial redemption, selection of certificated Notes for redemption will be made by lot. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any certificated Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new certificated Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original certificated Note. For so long as the Notes are held by the Depositary (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the Depositary.
Notice of any redemption of Notes in connection with a transaction or an event may, at the Company’s discretion, be given prior to the completion or the occurrence thereof. Any redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of a related transaction or event. At the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed. The Company will provide written notice to the Trustee as soon as practicable but in any event no later than two days prior to the Redemption Date if any such redemption has been rescinded or delayed, and upon receipt and at the Company’s request the Trustee will provide such notice to each Holder of the Notes to be redeemed in the same manner in which the notice of redemption was given.
| 7. | DENOMINATIONS; TRANSFER; EXCHANGE |
The Notes are in registered form, without coupons, in denominations of $2,000 and integral multiples of $1,000 in excess thereof. A Holder may transfer Notes only in accordance with the Supplemental Indenture and the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any governmental taxes and fees required by law or permitted by the Supplemental Indenture. The Registrar need not transfer or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or any Notes for a period of 15 days before any selection of Notes to be redeemed.
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| 8. | PERSONS DEEMED OWNERS |
The registered Holder of this Note may be treated as the owner of this Note for all purposes.
| 9. | UNCLAIMED MONEY OR PROPERTY |
The Trustee and the Paying Agent shall return to the Company upon written request any money or property held by them for the payment of any amount with respect to the Notes that remains unclaimed for two years; provided, that, the Trustee or such Paying Agent, before being required to make any such return, shall at the expense of the Company cause to be published once in a newspaper of general circulation in The City of New York or mail to each such Holder notice that such money or property remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed money or property then remaining shall be returned to the Company. After return to the Company, Holders entitled to the money or property must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and Paying Agent with respect to the money or property will cease.
| 10. | AMENDMENT; WAIVER |
Subject to certain exceptions set forth in the Indenture and the Supplemental Indenture, (i) the Supplemental Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in aggregate principal amount of the Notes at the time outstanding and (ii) certain defaults or noncompliance with certain provisions may be waived with the written consent of the Holders of a majority in aggregate principal amount of the Notes at the time outstanding. Subject to certain exceptions set forth in the Indenture and the Supplemental Indenture, without the consent of any Holder, the Company and the Trustee may amend the Supplemental Indenture or the Notes to cure any ambiguity, defect or inconsistency, to make any change that does not adversely affect the right of any Holder, to evidence the succession of another corporation to the Company (or successive successions) and the assumption by the successor corporation of the covenants, agreements and obligations of the Company, to add to the covenants of the Company such further covenants, restrictions or conditions as the Board of Directors shall consider to be for the benefit of the Holders of Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in the Supplemental Indenture and the Indenture, to evidence and provide for the acceptance of appointment hereunder of a successor Trustee with respect to the Notes, to modify, eliminate or add to the provisions of the Supplemental Indenture to such extent as shall be necessary for the Supplemental Indenture to comply with the TIA, or under any similar federal statute hereafter enacted, or to conform the text of the Indenture, the Supplemental Indenture, the Notes or any Guarantee of the Notes to any corresponding provisions of the “Description of Debt Securities” or “Description of Notes” or similar provisions in any prospectus or prospectus supplement filed with the SEC in respect of the Notes, including the Prospectus dated April 10, 2026 and the Prospectus Supplement dated October 13, 2026.
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| 11. | DEFAULTS AND REMEDIES |
Under the Supplemental Indenture, Events of Default include (i) a default by the Company in the payment of any interest which continues for more than 30 days after the due date; (ii) a default by the Company in the payment of any principal or Redemption Price or Repurchase Price due with respect to the Notes; (iii) a default by the Company or any Guarantor with respect to its obligation to pay Indebtedness for money borrowed by the Company or such Guarantor existing under any mortgage, indenture or instrument (other than any Non-Recourse Indebtedness), which default shall have resulted in the acceleration of, or be a failure to pay at final maturity, Indebtedness aggregating more than $150 million, and such acceleration does not cease to exist, or such Indebtedness is not satisfied, in either case, within 30 days after such acceleration; (iv) a failure to perform any other covenant or warranty of the Company in the Supplemental Indenture or in the Indenture, which continues for 60 days after written notice; (v) [reserved]; (vi) the Company or any Significant Subsidiary, pursuant to any Bankruptcy Law applicable to the Company or such Significant Subsidiary: (A) commences a voluntary case; (B) consents to the entry of an order for relief against it or them in an involuntary case against it or them; (C) consents to the appointment of a Custodian of it or them or for any substantial part of its or their property; or (D) makes a general assignment for the benefit of its or their creditors; or (vii) a court of competent jurisdiction enters an order or decree under any applicable Bankruptcy Law: (A) for relief in an involuntary case against the Company or any Significant Subsidiary; (B) appointing a Custodian of the Company or any Significant Subsidiary or for any substantial part of its or their respective property; or (C) ordering the winding up or liquidation of the Company or any Significant Subsidiary; and the order or decree remains unstayed and in effect for 90 days. If an Event of Default occurs and is continuing, the Trustee, or the Holders of at least 25% in aggregate principal amount of the Notes at the time outstanding, may declare the outstanding principal of the Notes and any accrued and unpaid interest through the date of such declaration on all of the Notes to be immediately due and payable. The events of bankruptcy or insolvency described in clauses (vi) and (vii) above are Events of Default which shall result in the outstanding principal amount of all Notes being declared due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Supplemental Indenture, the Indenture or the Notes except as provided in the Indenture and the Supplemental Indenture. The Trustee may refuse to enforce the Indenture, the Supplemental Indenture and the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, conditions and exceptions, Holders of a majority in aggregate principal amount of the Notes at the time outstanding may direct the Trustee in its exercise of any trust or power, including the annulment of a declaration of acceleration. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of amounts specified in clauses (i) and (ii) above) if it determines that withholding notice is in their interests.
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| 12. | TRUSTEE DEALINGS WITH THE COMPANY |
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 13. | NO RECOURSE AGAINST OTHERS |
A director, officer, employee, incorporator, stockholder or partner, as such, of the Company, any of the Company’s successor corporations or any Subsidiary of the foregoing shall not have any liability for any obligations of the Company under the Notes or the Supplemental Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
| 14. | GUARANTEES |
This Note will be entitled to the benefits of certain Guarantees, if any, made for the benefit of the Holders. Reference is hereby made to the Supplemental Indenture for a statement of the respective rights, limitations of rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders.
| 15. | RANKING |
The Notes shall be direct, unsecured obligations of the Company and shall rank pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Company. The Guarantees shall be direct, unsecured obligations of the Guarantors and shall rank pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Guarantors.
| 16. | AUTHENTICATION |
This Note shall not be valid until an authorized officer of the Trustee signs the Trustee’s Certificate of Authentication set forth in this Note by manual or electronic signature.
| 17. | ABBREVIATIONS |
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
| 18. | GOVERNING LAW |
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE, THE SUPPLEMENTAL INDENTURE AND THIS NOTE.
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| 19. | CHANGE OF CONTROL |
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem those Notes by notifying the Holders to that effect as described above, the Company shall make an offer (a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part of that Holder’s Notes on the terms set forth below; provided, that, the Notes shall be repurchased in multiples of $1,000 and if any Holder elects to have less than all of its Notes repurchased by the Company, the unpurchased portion of the Notes shall be equal to $2,000 or an integral multiple of $1,000 in excess thereof. In a Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of repurchase (a “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall send a notice to Holders, describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date that notice is sent, other than as may be required by law (a “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date.
On each Change of Control Payment Date, the Company shall, to the extent lawful, accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer, deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered, and deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased and that all conditions precedent provided for in the Indenture to the Change of Control Offer and to the repurchase by the Company of Notes pursuant to the Change of Control Offer have been complied with.
The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all Notes properly tendered in response to its offer and not withdrawn.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions herein, the Company will comply with those securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Offer provisions herein and in the Indenture by virtue of any such conflict.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below and have your signature guaranteed:
| I or we assign and transfer this Note to: | ||
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| (Print or type name, address and zip code and social security or tax ID number of assignee) | ||
and irrevocably appoint, agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Dated: |
Signed: | |||||||
| (Sign exactly as your name appears on the other side of this Note) | ||||||||
Signature Guarantee: _________________________
Signature must be guaranteed by an “eligible guarantor institution,” that is, a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
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EXHIBIT B
FORM OF GUARANTEE
GUARANTEE
For value received, each of the Persons named in Schedule I hereto (collectively, the “Guarantors”) hereby unconditionally guarantees, as principal obligor and not only as a surety, to the Holders of the 5.700% Senior Notes due 2029 (the “Notes”) of Lennar Corporation, a Delaware corporation (the “Company”), the cash payments in United States Dollars of any amounts due with respect to the Notes in the amounts and at the times when due and interest on all overdue amounts, to the extent lawful, and the payment or performance of all other obligations of the Company under the Indenture (as defined below) or the Notes, to the Holders and the Trustee (as defined below), all in accordance with and subject to the terms and limitations of the Notes, Article Eight of the Supplemental Indenture (as defined below) and this Guarantee. The validity and enforceability of this Guarantee shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture, dated as of December 31, 1997 (as amended from time to time, the “Base Indenture”), between the Company and The Bank of New York Mellon, as successor trustee (the “Trustee”), as amended and supplemented by the Sixteenth Supplemental Indenture, dated as of October 15, 2026, among the Company, the Guarantors named therein and the Trustee (as amended or supplemented from time to time, the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
The obligations of each of the Guarantors to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article Eight of the Supplemental Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS GUARANTEE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS RULES THAT WOULD APPLY THE LAWS OF ANY OTHER JURISDICTION. Each of the Guarantors hereto agrees to submit to the jurisdiction of the courts of the State of New York sitting in the County of New York, or of the United States of America for the Southern District 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 Supplemental Indenture.
The undersigned acknowledge that this Guarantee is subject to the TIA and each of the undersigned agrees to discharge its duties under the TIA.
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IN WITNESS WHEREOF, each of the Guarantors listed on Schedule I hereto has caused this Guarantee to be duly executed.
Dated: ____________________
| Authorized signatory for each of the Guarantors listed on Schedule I hereto | ||
| By: |
| |
| Name: | ||
| Title: | ||
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SCHEDULE I
GUARANTORS
Greystone Nevada, LLC
Lennar Arizona, LLC
Lennar Carolinas, LLC
Lennar Colorado, LLC
Lennar Homes, LLC
Lennar Homes of Alabama, LLC
Lennar Homes of California, LLC
Lennar Homes of Indiana, LLC
Lennar Homes of Oklahoma, LLC
Lennar Homes of Tennessee, LLC
Lennar Homes of Texas Land and Construction, Ltd.
Lennar Northwest, LLC
Lennar Reno, LLC
Lennar Georgia, LLC
TI Lot 8, LLC
U.S. Home, LLC
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Exhibit 4.4
LENNAR CORPORATION,
as Issuer,
THE GUARANTORS NAMED HEREIN
and
THE BANK OF NEW YORK MELLON,
as Trustee
SEVENTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 15, 2026
to
INDENTURE
DATED AS OF DECEMBER 31, 1997
relating to
5.950% Senior Notes Due 2032
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE DEFINITIONS | 2 | |||||
| SECTION 1.01. |
Definitions |
2 | ||||
| SECTION 1.02. |
Additional Rules of Construction |
9 | ||||
| ARTICLE TWO THE NOTES | 9 | |||||
| SECTION 2.01. |
Creation of Series |
9 | ||||
| SECTION 2.02. |
Optional Redemption by the Company |
11 | ||||
| SECTION 2.03. |
Defaulted Interest |
13 | ||||
| SECTION 2.04. |
CUSIP Number |
13 | ||||
| SECTION 2.05. |
Deposit of Monies |
13 | ||||
| SECTION 2.06. |
Transfer and Exchange |
14 | ||||
| SECTION 2.07. |
Book-Entry Provisions for Global Notes |
15 | ||||
| SECTION 2.08. |
Denominations |
16 | ||||
| ARTICLE THREE SUCCESSOR CORPORATION | 16 | |||||
| SECTION 3.01. |
Company May Consolidate, etc., Only on Certain Terms |
16 | ||||
| SECTION 3.02. |
Successor Corporation Substituted |
17 | ||||
| ARTICLE FOUR ADDITIONAL COVENANTS | 17 | |||||
| SECTION 4.01. |
Payment of Notes |
17 | ||||
| SECTION 4.02. |
Reporting |
17 | ||||
| SECTION 4.03. |
Corporate Existence |
17 | ||||
| SECTION 4.04. |
Compliance Certificate |
18 | ||||
| SECTION 4.05. |
Further Instruments and Acts |
18 | ||||
| SECTION 4.06. |
Limitations on Liens |
18 | ||||
| SECTION 4.07. |
Sale-Leaseback Transactions |
20 | ||||
| SECTION 4.08. |
Furnishing Guarantees |
21 | ||||
| SECTION 4.09. |
Change of Control |
22 | ||||
| ARTICLE FIVE DEFAULTS AND REMEDIES | 25 | |||||
| SECTION 5.01. |
Events of Default |
25 | ||||
| SECTION 5.02. |
Acceleration of Maturity; Rescission and Annulment |
26 | ||||
| SECTION 5.03. |
Waiver of Existing Defaults |
27 | ||||
| SECTION 5.04. |
Limitation on Suits |
27 | ||||
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| ARTICLE SIX DISCHARGE OF SUPPLEMENTAL INDENTURE | 28 | |||||
| SECTION 6.01. |
Discharge of Supplemental Indenture |
28 | ||||
| SECTION 6.02. |
Application of Trust Money |
28 | ||||
| SECTION 6.03. |
Repayment to the Company |
29 | ||||
| SECTION 6.04. |
Reinstatement |
29 | ||||
| SECTION 6.05. |
Officers’ Certificate; Opinion of Counsel |
29 | ||||
| ARTICLE SEVEN SUPPLEMENTAL INDENTURES | 29 | |||||
| SECTION 7.01. |
Without Consent of Holders |
29 | ||||
| SECTION 7.02. |
With Consent of Holders |
30 | ||||
| ARTICLE EIGHT GUARANTEE OF NOTES | 30 | |||||
| SECTION 8.01. |
Unconditional Guarantee |
30 | ||||
| SECTION 8.02. |
Limitations on Guarantees; Release of Particular Guarantors’ Obligations |
32 | ||||
| SECTION 8.03. |
Execution and Delivery of Guarantee |
32 | ||||
| SECTION 8.04. |
Release of a Guarantor in Connection with a Sale |
32 | ||||
| SECTION 8.05. |
Waiver of Subrogation |
33 | ||||
| SECTION 8.06. |
No Set-Off |
33 | ||||
| SECTION 8.07. |
Obligations Absolute |
34 | ||||
| SECTION 8.08. |
Obligations Continuing |
34 | ||||
| SECTION 8.09. |
Obligations Not Reduced |
34 | ||||
| SECTION 8.10. |
Obligations Reinstated |
34 | ||||
| SECTION 8.11. |
Obligations Not Affected |
34 | ||||
| SECTION 8.12. |
Waiver |
35 | ||||
| SECTION 8.13. |
No Obligation to Take Action Against the Company |
36 | ||||
| SECTION 8.14. |
Dealing with the Company and Others |
36 | ||||
| SECTION 8.15. |
Default and Enforcement |
36 | ||||
| SECTION 8.16. |
Amendment, etc. |
36 | ||||
| SECTION 8.17. |
Acknowledgment |
36 | ||||
| SECTION 8.18. |
Costs and Expenses |
37 | ||||
| SECTION 8.19. |
No Merger or Waiver; Cumulative Remedies |
37 | ||||
| SECTION 8.20. |
Survival of Obligations |
37 | ||||
| SECTION 8.21. |
Guarantee in Addition to Other Obligations |
37 | ||||
| SECTION 8.22. |
Severability |
37 | ||||
| SECTION 8.23. |
Successors and Assigns |
37 | ||||
| SECTION 8.24. |
Acknowledgement under TIA |
37 | ||||
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| ARTICLE NINE MISCELLANEOUS | 38 | |||||
| SECTION 9.01. |
TIA Controls |
38 | ||||
| SECTION 9.02. |
Conflict with Indenture |
38 | ||||
| SECTION 9.03. |
Notices |
38 | ||||
| SECTION 9.04. |
Electronic Instructions/Directions |
39 | ||||
| SECTION 9.05. |
Governing Law |
40 | ||||
| SECTION 9.06. |
WAIVER OF JURY TRIAL |
40 | ||||
| SECTION 9.07. |
Successors |
40 | ||||
| SECTION 9.08. |
Counterparts |
40 | ||||
| SECTION 9.09. |
Reserved |
41 | ||||
| SECTION 9.10. |
No Personal Liability |
41 | ||||
| SECTION 9.11. |
Concerning the Trustee |
41 | ||||
| SECTION 9.12. |
Severability |
42 | ||||
| SECTION 9.13. |
FATCA |
42 | ||||
| EXHIBITS AND SCHEDULES | ||||||
| EXHIBIT A |
FORM OF NOTE |
A-1 | ||||
| EXHIBIT B |
FORM OF GUARANTEE |
B-1 | ||||
| SCHEDULE I |
GUARANTORS |
I-1 | ||||
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SEVENTEENTH SUPPLEMENTAL INDENTURE, dated as of October 15, 2026 (the “Supplemental Indenture”), to Indenture, dated as of December 31, 1997, among Lennar Corporation (the “Company”), a Delaware corporation having its principal office at 5505 Waterford District Drive, Miami, Florida 33126, each of the Guarantors named herein, and The Bank of New York Mellon, a New York banking corporation which has its principal corporate trust office at 240 Greenwich Street, New York, NY 10286, as successor Trustee (the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to The First National Bank of Chicago, N.A., as trustee, an Indenture, dated as of December 31, 1997 (the “Indenture”), providing for the issuance from time to time of its notes and other evidences of unsecured indebtedness, to be issued in one or more series as therein provided (“Securities”);
WHEREAS, Bank One Trust Company, N.A. succeeded to the rights and obligations of The First National Bank of Chicago, N.A. under the Indenture;
WHEREAS, J.P. Morgan Trust Company, N.A. succeeded to the rights and obligations of Bank One Trust Company, N.A. under the Indenture;
WHEREAS, The Bank of New York Mellon Trust Company, N.A. succeeded to the rights and obligations of J.P. Morgan Trust Company, N.A. under the Indenture;
WHEREAS, The Bank of New York Mellon succeeded to the rights and obligations of The Bank of New York Mellon Trust Company, N.A. under the Indenture and, as a result of such succession, The Bank of New York Mellon is currently acting as the Trustee under the Indenture and this Supplemental Indenture;
WHEREAS, Section 2.02 of the Indenture provides that the Company and the Trustee, at any time and from time to time, may enter into an indenture which supplements the Indenture to establish the terms of Securities of any series;
WHEREAS, the Company has duly authorized the creation of an issue of Securities to be known as the 5.950% Senior Notes due 2032 (the “Notes”) and to be guaranteed by the Guarantors, and to provide therefor the Company and the Guarantors have duly authorized the execution and delivery of this Supplemental Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered hereunder, the valid obligations of the Company, and to make this Supplemental Indenture a valid agreement of the Company and the Guarantors, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS SEVENTEENTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed to them in the Indenture. In the case of capitalized terms defined in this Supplemental Indenture that are also defined in the Indenture, the meanings ascribed to such terms in this Supplemental Indenture shall apply with respect to the Notes.
For purposes of this Supplemental Indenture, the following terms have the meanings ascribed to them as follows:
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” means any Registrar, Paying Agent or co-Registrar.
“Agent Members” has the meaning provided in Section 2.07(2).
“Bankruptcy Law” means Title 11 of the United States Code or any similar United States Federal or State law for the relief of debtors.
“Board of Directors” means the Board of Directors of the Company.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday which is not a Legal Holiday in New York, New York.
“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that only those leases that would constitute capital leases in conformity with GAAP as of December 31, 2018 shall be considered capital leases for purposes of all financial definitions and calculations for purpose of this Indenture.
“Capital Markets Indebtedness” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (a) a public offering registered under the Securities Act, (b) a private placement to institutional investors that is resold in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the SEC or (c) a private placement to institutional investors. For the avoidance of doubt, the term “Capital Markets Indebtedness” does not include any Indebtedness under the Notes or the Credit Facilities, Indebtedness incurred in connection with a sale and leaseback transaction, Indebtedness incurred in the ordinary course of business of the Company, Capital Lease Obligations or recourse transfer of any financial asset or any other type of Indebtedness incurred in a manner not customarily viewed as a “securities offering.”
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“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 the Issue Date.
“Change of Control Offer” has the meaning provided in Section 4.09(1).
“Change of Control Payment” has the meaning provided in Section 4.09(1).
“Change of Control Payment Date” has the meaning provided in Section 4.09(1).
“Class A Common Stock” shall mean the Company’s Class A common stock, par value $.10 per share.
“Consolidated Net Tangible Assets” means the total amount of assets which would be included on a consolidated balance sheet of the Company and the Restricted Subsidiaries under GAAP (less applicable reserves and other properly deductible items) after deducting therefrom:
(1) all short-term liabilities, i.e., liabilities payable by their terms less than one year from the date of determination and not renewable or extendable at the option of the obligor for a period ending more than one year after such date, and liabilities in respect of retiree benefits other than pensions for which the Restricted Subsidiaries are required to accrue pursuant to ASC No. 715;
(2) investments in Subsidiaries that are not Restricted Subsidiaries; and
(3) all assets reflected on the Company’s balance sheet as the carrying value of goodwill, trade names, trademarks, patents, unamortized debt discount, unamortized expense incurred in the issuance of debt and other intangible assets.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, New York, NY 10286, Attention: Corporate Trust Administration, with a copy to:
The Bank of New York Mellon
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Logan Zamperini, Corporate Trust Administration
or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
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“Credit Facilities” means the Revolving Credit Agreement and the Delayed Draw Term Loan Credit Agreement.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Default” means any event which upon the giving of notice or the passage of time, or both, would be an Event of Default.
“Default Interest Payment Date” has the meaning provided in Section 2.03.
“Delayed Draw Term Loan Credit Agreement” means that certain Delayed Draw Term Loan Credit Agreement, dated as of May 14, 2025, by and among, inter alios, among the Company, the several banks and other financial institutions or entities from time to time parties thereto, and JPMorgan Chase Bank, N.A., as the administrative agent, together with the related documents thereto (including the term loans thereunder and reimbursement obligations related thereto and any guarantees), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
“Depositary” means The Depository Trust Company, its nominees and successors.
“Event of Default” has the meaning provided in Section 5.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Funded Debt” of any Person means all Indebtedness for borrowed money created, incurred, assumed or guaranteed in any manner by such Person, and all Indebtedness, contingent or otherwise, incurred or assumed by such Person in connection with the acquisition of any business, property or asset, which in each case matures more than one year after, or which by its terms is renewable or extendible or payable out of the proceeds of similar Indebtedness incurred pursuant to the terms of any revolving credit agreement or any similar agreement at the option of such Person for a period ending more than one year after the date as of which Funded Debt is being determined; provided, that, Funded Debt shall not include (i) any Indebtedness for the payment, redemption or satisfaction of which money (or evidences of Indebtedness, if permitted under the instrument creating or evidencing such Indebtedness) in the necessary amount shall have been irrevocably deposited in trust with a trustee or proper depositary either on or before the maturity or redemption date thereof or (ii) any Indebtedness of such Person to any of its subsidiaries or of any subsidiary to such Person or any other subsidiary or (iii) any Indebtedness incurred in connection with the financing of operating, construction or acquisition projects; provided, that, the recourse for such Indebtedness is limited to the assets of such projects.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect on the Issue Date; provided that the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capital Lease Obligations.
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“Global Note” has the meaning provided in Section 2.01(1).
“Guarantee” has the meaning provided in Section 8.01.
“Guarantor” means (a) initially, each of the Guarantors set forth on Schedule I to this Supplemental Indenture, and (b) each of the Company’s Subsidiaries that in the future executes a Guarantee in substantially the form of Exhibit B hereto in which such Subsidiary agrees to be bound by the terms hereof as Guarantor, in each case, subject to release as provided in Article Eight.
“Holder” means a Person in whose name a Note is registered on the Registrar’s books.
“Indebtedness” means, with respect to the Company or any Subsidiary, and without duplication, (a) the principal of and premium, if any, and interest on, and fees, costs, enforcement expenses, collateral protection expenses and other reimbursement or indemnity obligations in respect to all indebtedness or obligations of the Company or any Subsidiary to any Person, including but not limited to banks and other lending institutions, for money borrowed that is evidenced by a note, bond, debenture, loan agreement, or similar instrument or agreement (including purchase money obligations with original maturities in excess of one year and noncontingent reimbursement obligations in respect of amounts paid under letters of credit); (b) all reimbursement obligations and other liabilities (contingent or otherwise) of the Company or any Subsidiary with respect to letters of credit, bank guarantees or bankers’ acceptances; (c) all obligations and liabilities (contingent or otherwise) in respect of leases of the Company or any Subsidiary required, in conformity with GAAP, to be accounted for as Capital Lease Obligations on the balance sheet of the Company; (d) any Indebtedness of others described in clauses (a) through (c) that the Company or such Subsidiary has guaranteed to the extent of such guarantee; (e) any Indebtedness of others described in clauses (a) through (c) secured by any Lien existing on property which is owned or held by the Company or such Subsidiary, regardless of whether the Indebtedness or other obligation secured thereby shall have been assumed by the Company or such Subsidiary; provided that the amount of Indebtedness of such Person shall be the lesser of (a) the fair market value of such property and (b) the amount of such Indebtedness of such other Persons; and (f) any and all deferrals, renewals, extensions and refinancing of, or amendments, modifications or supplements to, any Indebtedness, obligation or liability of the kind described in clauses (a) through (e).
“Indenture” has the meaning provided in the Recitals.
“Interest Payment Date” means the stated maturity of an installment of interest on the Notes.
“Issue Date” means October 15, 2026.
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions or trust companies are authorized or required by law to remain closed.
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“Lien” means any mortgage, pledge, lien, encumbrance, charge or security interest of any kind.
“Maturity Date” means January 15, 2032.
“Non-Recourse Indebtedness” means any Indebtedness of the Company or any Restricted Subsidiary for which the holder of such Indebtedness has no recourse, directly or indirectly, to the Company or such Restricted Subsidiary for the principal of, premium, if any, and interest on such Indebtedness, and for which the Company or such Restricted Subsidiary is not, directly or indirectly, obligated or otherwise liable for the principal of, premium, if any, and interest on such Indebtedness, except pursuant to mortgages, deeds of trust or other security interests or other recourse, obligations or liabilities, in respect of specific land or other real property interests of the Company or such Restricted Subsidiary securing such Indebtedness; provided, that, recourse, obligations or liabilities solely for indemnities, breaches of warranties or representations contained in such mortgages, deeds of trust or grants of security interests in respect of Indebtedness, will not prevent that Indebtedness from being classified as Non-Recourse Indebtedness.
“Notes” has the meaning provided in the Recitals.
“Obligations” means all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing the Notes.
“Officer” means the Chairman of the Board, any Vice Chairman of the Board, any Chief Executive Officer, any President, any Executive Vice President or Vice President, the Treasurer, the Secretary, the Controller or any Assistant Secretary of a Person.
“Paying Agent” means the office or agency designated by the Company where Notes may be presented for payment.
“Permitted Liens” has the meaning provided in Section 4.06.
“Permitted Sale-Leaseback Transactions” has the meaning provided in Section 4.07.
“Physical Notes” has the meaning provided in Section 2.01(2).
“Property” of any Person means all types of real, personal, tangible, intangible or mixed property owned by such Person, whether or not included in the most recent consolidated balance sheet of such Person and its Subsidiaries under GAAP.
“Record Date” means the Record Date specified in the Notes.
“Redemption Date” when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Supplemental Indenture.
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“Redemption Price” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Supplemental Indenture and the Notes. For the avoidance of doubt, the Redemption Price excludes accrued interest to the Redemption Date.
“Repurchase Price” means, with respect to any Note to be repurchased, the price at which it is to be repurchased pursuant to Section 4.09 of this Supplemental Indenture.
“Restricted Subsidiary” means (a) all existing wholly-owned Subsidiaries (i.e., directly or indirectly 100% owned), other than finance company Subsidiaries and any foreign Subsidiaries, and (b) all future wholly-owned Subsidiaries (i.e., directly or indirectly 100% owned) that become Guarantors, in each case, until such time as such Subsidiary is released in accordance with the terms of this Supplemental Indenture.
“Revolving Credit Agreement” means that certain Ninth Amended and Restated Credit Agreement, dated as of November 25, 2024, by and among, inter alios, among the Company, the several banks and other financial institutions or entities from time to time parties thereto, and JPMorgan Chase Bank, N.A., as the issuing lender and the administrative agent, together with the related documents thereto (including the revolving loans thereunder, any letters of credit and reimbursement obligations related thereto and any guarantees), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
“Sale-Leaseback Transaction” means a sale or transfer made by the Company or a Restricted Subsidiary of any property which is either (A) a manufacturing facility, project club house, amenity center and common area, office building, warehouse or distribution facility whose book value equals or exceeds 1% of Consolidated Net Tangible Assets as of the date of determination, or (B) another property (not including a model home) or group of properties which exceeds 5% of Consolidated Net Tangible Assets as of the date of determination, if such sale or transfer is made with the agreement, commitment or intention of leasing such property to the Company or a Restricted Subsidiary.
“Securities” has the meaning provided in the Recitals.
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Subsidiary” means any Subsidiary of the Company which would constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X under the Securities Act and the Exchange Act.
“Subsidiary” means (i) a corporation or other entity of which a majority in voting power of the stock or other interests is owned by the Company, by a Subsidiary of the Company or by the Company and one or more Subsidiaries of the Company or (ii) a partnership, the sole general partner or partners of which are the Company and/or any Subsidiary and of which the Company or any Subsidiary owns at least 25% in value of the equity.
“Supplemental Indenture” has the meaning provided in the Preamble.
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“Total Consolidated Stockholders’ Equity” means, with respect to any date of determination, the Company’s total consolidated stockholders’ equity as shown on its most recent consolidated balance sheet that is contained or incorporated in the latest annual report on Form 10-K (or equivalent report) or quarterly report on Form 10-Q (or equivalent report) filed with the SEC, and is as of a date not more than 181 days prior to the date of determination, in the case of the consolidated balance sheet contained or incorporated in an annual report on Form 10-K, or 135 days prior to the date of determination, in the case of the consolidated condensed balance sheet contained in a quarterly report on Form 10-Q.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
(1) The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
(2) If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon
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the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Trustee” means the person named as such in this Supplemental Indenture and, subject to the provisions of Article Seven of the Indenture, any successor to that person.
“Trust Officer” means any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, senior associate, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of the Indenture and this Supplemental Indenture.
“U.S. Government Obligations” means direct obligations of, and obligations guaranteed by, the United States of America for the payment of which the full faith and credit of the United States of America is pledged.
“U.S. Legal Tender” means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.
SECTION 1.02. Additional Rules of Construction. In addition to the rules of construction set forth in Section 1.03 of the Indenture:
(a) “herein,” “hereof” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(b) references in this Supplemental Indenture to section numbers shall be deemed to be references to section numbers of this Supplemental Indenture unless otherwise specified; and
(c) any reference to a statute, law or regulation means that statute, law or regulation as amended and in effect from time to time and includes any successor statute, law or regulation; provided, that, any reference to the Bankruptcy Law shall mean the Bankruptcy Law as applicable to the relevant case.
ARTICLE TWO
THE NOTES
SECTION 2.01. Creation of Series. In accordance with Section 2.01 and Section 2.02 of the Indenture, there is hereby created a series of Securities under the Indenture entitled “5.950% Senior Notes due 2032”.
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(1) The Notes shall be issued in the form of one or more permanent global Notes in registered form, substantially in the form set forth in Exhibit A (each, a “Global Note”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in Section 2.07(1). The aggregate principal amount of a Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter provided. The terms and provisions contained in the Notes annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
(2) Notes issued in exchange for interests in a Global Note pursuant to Section 2.07 may be issued in the form of permanent certificated Notes in registered form in substantially the form set forth in Exhibit A (the “Physical Notes”).
(3) Subject to Section 2.02 of the Indenture and applicable law, the aggregate principal amount of the Notes which may be authenticated and delivered on the Issue Date shall not exceed $300,000,000; provided, that, the Company may, without notice to or the consent of the Holders, issue additional Notes under this Supplemental Indenture at any time hereafter and may issue Securities of any other series under the Indenture at any time hereafter. The Trustee shall authenticate all Notes from time to time upon a written order of the Company in the form of an Officers’ Certificate. Each such written order shall specify the amount of the Notes to be authenticated and the date on which the Notes are to be authenticated, whether the Notes are to be Physical Notes and such other information as the Trustee may reasonably request.
(4) The aggregate principal amount of the Notes shall be payable on the Maturity Date unless earlier repaid in accordance with this Supplemental Indenture.
(5) Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Issue Date. The Company shall pay interest semi-annually in arrears on each Interest Payment Date, commencing on January 15, 2027. Interest shall be computed on the basis of a 360-day year of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed.
(6) If any payment on the Notes is due on a day other than a Business Day, such payment may be made on the next succeeding Business Day with the same force and effect as if made on the date that the relevant payment was due, and no interest shall accrue for the intervening period.
(7) All amounts payable in connection with the Notes shall be denominated and payable in the lawful currency of the United States.
(8) The Notes shall be payable, and may be presented for registration of transfer and exchange, without service charge, at the office of the Company maintained for such purpose in New York, New York, which shall initially be the office or agency of the Trustee.
(9) The Notes shall not be convertible into any class of capital stock of the Company.
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(10) In the event that Notes are authenticated and delivered subsequent to the date hereof pursuant to Section 2.01(3) hereof, such Notes will have the same terms and conditions (other than the issuance and the public offering price and, under certain circumstances, the date from which interest thereon will begin to accrue and the initial interest payment date) and will have the same CUSIP number as the Notes issued on the date hereof (assuming such Notes issued subsequent to the Issue Date are fungible with the previously issued Notes for U.S. federal income tax purposes).
(11) Notwithstanding the foregoing, all Notes issued under this Supplemental Indenture shall vote and consent together on all matters (as to which any of such Notes may vote or consent) as the same series and no Notes issued subsequent to the date hereof will have the right to vote or consent as a separate series on any matter.
(12) If, on a Redemption Date, a Change of Control Payment Date or the Maturity Date, the Paying Agent holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the principal, premium, if any, and interest due on the Notes payable on that date and is not prohibited from paying such money to the Holders pursuant to the terms of the Indenture and this Supplemental Indenture, then on and after that date such Notes shall be deemed not to be outstanding and interest on them shall cease to accrue.
(13) The terms of this Section 2.01(13) will govern with respect to the Notes in lieu of Section 2.04 of the Indenture. An Officer will sign the Notes for the Company by manual or electronic signature. If an Officer whose signature is on a Note no longer holds office at the time the Trustee authenticates such Note, such Note will nevertheless be valid. A Note will not be valid until an authorized signatory of the Trustee signs the certificate of authentication on such Note by manual or electronic signature. The signature will be conclusive evidence that such Note has been authenticated under the Indenture and this Supplemental Indenture.
SECTION 2.02. Optional Redemption by the Company.
(1) Right to Redeem; Notice to Trustee. The Company, at its option, may redeem the Notes in accordance with the provisions of paragraphs 5 and 6 of the Notes. If the Company elects to redeem Notes pursuant to paragraph 5 of the Notes, it shall notify the Trustee in writing as provided in Section 2.02(2) below. The Company shall give the notice to the Trustee provided for in this Section 2.02(1) at least 15 days but not more than 90 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).
(2) Notice of Redemption. Subject to Section 2.02(5), at least 10 days but not more than 60 days before a Redemption Date, the Company shall mail or electronically deliver (or otherwise transmit in accordance with the procedures of the Depositary) a notice of redemption to the Trustee and to each Holder of Notes to be redeemed. The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price that would be in effect if such Notes were being redeemed on the date of the notice;
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(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be presented and surrendered to the Paying Agent to collect the Redemption Price and any accrued interest;
(e) that interest on Notes called for redemption shall cease to accrue on and after the Redemption Date and, unless the Company defaults in making the redemption payment, the only remaining right of the Holder shall be to receive payment of the Redemption Price upon presentation and surrender to the Paying Agent of the Notes;
(f) if fewer than all the outstanding Notes are to be redeemed, the certificate number (if any) and principal amounts of the particular Notes to be redeemed;
(g) if the redemption is subject to one or more conditions precedent, a description of such condition precedent and the consequences to the redemption if such condition is not met; and
(h) the CUSIP number or numbers for the Notes called for redemption.
At the Company’s request, delivered at least 5 Business Days prior to the date such notice is to be given (unless a shorter period shall be acceptable to the Trustee), the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company will provide the Trustee with the notice to be delivered to the Holders, which shall contain the information required by clauses (a) through (h).
(3) Effect of Notice of Redemption. Subject to Section 2.02(5), once notice of redemption is given, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice and, upon presentation and surrender to the Paying Agent, Notes called for redemption shall be paid at the Redemption Price, together with any accrued interest.
(4) Sinking Fund. There shall be no sinking fund provided for the Notes.
(5) Notice of any redemption of Notes in connection with a transaction or an event may, at the Company’s discretion, be given prior to the completion or the occurrence thereof. Any redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of a related transaction or event. At the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed. The Company will provide written notice to the Trustee as soon as practicable but in any event no later than 2 days prior to the Redemption Date if any such redemption has been rescinded or delayed, and upon receipt and at the Company’s request the Trustee will provide such notice to each Holder of the Notes to be redeemed in the same manner in which the notice of redemption was given.
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SECTION 2.03. Defaulted Interest. The Company shall pay from time to time on demand (i) interest on overdue principal and (ii) to the extent lawful, interest on overdue installments of interest (without regard to any applicable grace periods), in each case, at the rate of interest borne by the Notes, plus 1% per annum from and including the relevant payment date to but excluding the date on which such defaulted amounts shall have been paid by the Company. All such interest will be computed on the basis of a 360-day year comprised of twelve 30-day months, and, in the case of a partial month, the actual number of days elapsed.
If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, which special record date shall be the fifteenth day next preceding the date fixed by the Company for the payment of defaulted interest or the next succeeding Business Day if such date is not a Business Day. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment (a “Default Interest Payment Date”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section; provided, that, in no event shall the Company deposit monies proposed to be paid in respect of defaulted interest later than 11:00 a.m. New York City time on the proposed Default Interest Payment Date. At least 15 days before the subsequent special record date, the Company shall send (or cause to be sent) to each Holder, as of a recent date selected by the Company, with a copy to the Trustee at least 20 days prior to such special record date, a notice that states the subsequent special record date, the Default Interest Payment Date and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid. Notwithstanding the foregoing, any interest that is paid prior to the expiration of the 30-day period set forth in Section 5.01(1) of this Supplemental Indenture shall be paid to Holders as of the regular record date for the Interest Payment Date for which interest has not been paid. Notwithstanding the foregoing, the Company may make payment of any defaulted interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange.
SECTION 2.04. CUSIP Number. In issuing the Notes, the Company may use a “CUSIP” number, and, if so, the Company shall use the CUSIP number in notices of redemption or exchange as a convenience to Holders; provided, that, any such notice may state that no representation is thereby deemed to be made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the CUSIP number.
SECTION 2.05. Deposit of Monies. Prior to 11:00 a.m. New York City time on each Interest Payment Date, Maturity Date, Change of Control Payment Date or Redemption Date, the Company shall have deposited with the Paying Agent in immediately available funds money sufficient to make cash payments, if any, due on such Interest Payment Date, Maturity Date, Change of Control Payment Date or Redemption Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date, Maturity Date, Change of Control Payment Date or Redemption Date, as the case may be.
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SECTION 2.06. Transfer and Exchange. Subject to Section 2.07, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met; provided, that, the Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee and the Registrar or co-Registrar, duly executed by the Holder thereof or such Holder’s attorney duly authorized in writing. To permit registration of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes at the Registrar’s or co-Registrar’s request. No service charge shall be made for any registration of transfer or exchange, but the Company and the Trustee may require payment of a sum sufficient to cover any transfer tax, fee or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchanges or transfers pursuant to Section 2.11 of the Indenture or Section 2.02 hereof, in which event the Company shall be responsible for the payment of such taxes or charges).
The Registrar or co-Registrar shall not be required to register the transfer of or exchange of any Note (i) during a period beginning at the opening of business 15 days before the sending of a notice of redemption of Notes and ending at the close of business on the day such notice is sent and (ii) selected for redemption in whole or in part pursuant to Section 2.02, except the unredeemed portion of any Note being redeemed in part.
Any holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial interest, agrees that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest in the Note must be reflected in such book-entry system.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed hereunder, under the Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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SECTION 2.07. Book-Entry Provisions for Global Notes.
(1) The Global Notes initially shall (a) be registered in the name of the Depositary or the nominee of such Depositary, (b) be delivered to the Trustee as custodian for such Depositary and (c) bear the following legend:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. REPRESENTATIVE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
(2) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture or this Supplemental Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Notes, and the Depositary may be treated by the Company, the Trustee and any Agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any Agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
(3) Transfers of a Global Note shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Note may be transferred or exchanged for Physical Notes in accordance with the rules and procedures of the Depositary; provided, that, Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Global Notes and a successor depositary is not appointed by the Company within 90 days of such notice, (ii) the Company discontinues the use of the system of book-entry transfer through the Depositary or any successor thereto or (iii) an Event of Default has occurred and is continuing and the Registrar has received a written request from the Depositary to issue Physical Notes.
(4) In connection with any transfer or exchange of a portion of the beneficial interest in a Global Note to beneficial owners pursuant to Section 2.07(3), the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute and the Trustee, upon receipt of a written order from the Company, shall authenticate and deliver, one or more Physical Notes of like tenor and amount.
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(5) In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.07(3), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute and the Trustee, upon receipt of a written order from the Company, shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations.
(6) The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture, this Supplemental Indenture or the Notes.
(7) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
SECTION 2.08. Denominations. The Notes shall be issued in minimum denominations of $2,000 and in any integral multiples of $1,000 in excess thereof.
ARTICLE THREE
SUCCESSOR CORPORATION
The terms of this Article Three shall govern with respect to the Notes in lieu of Article Five of the Indenture.
SECTION 3.01. Company May Consolidate, etc., Only on Certain Terms. The Company will not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by the consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety will be a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and expressly assumes, by one or more supplemental indentures, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest, if any, on all the Notes and the performance of every covenant of the Indenture and this Supplemental Indenture to be performed or observed by the Company;
(2) immediately after giving effect to the transaction, no Default or Event of Default will have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, conveyance, transfer or lease and the supplemental indenture (or the supplemental indentures together) comply with this Article Three and that all the conditions precedent relating to the transaction set forth in this Section 3.01 have been fulfilled.
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SECTION 3.02. Successor Corporation Substituted. Upon any event described in Section 3.01, the successor corporation will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture and this Supplemental Indenture, and, except in connection with a lease transaction, the predecessor corporation will be relieved of all obligations and covenants under the Indenture and this Supplemental Indenture.
ARTICLE FOUR
ADDITIONAL COVENANTS
SECTION 4.01. Payment of Notes. The Company will promptly pay or cause to be paid the principal of, premium, if any, and interest, if any, on each of the Notes at the places and time and in the manner provided in the Notes and this Supplemental Indenture. An installment of principal, premium or interest will be considered paid on the date it is due if the Trustee or Paying Agent holds on that date in accordance with this Supplemental Indenture money designated for and sufficient to pay the installment then due. The Company will pay or cause to be paid interest on overdue principal at the rate specified in the Notes; it will also pay interest on overdue installments of interest at the same rate, to the extent lawful.
SECTION 4.02. Reporting. The Company will file with the Trustee within 15 days after filing with the SEC, copies of its annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also will comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates); provided, that, the Trustee will be deemed to have actual knowledge of any Event of Default or Default set forth in any Officers’ Certificate delivered to a Trust Officer in the Corporate Trust Office pursuant to Section 4.04.
If at any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall furnish to Holders and prospective investors, upon request, any information required to be delivered pursuant to Rule 144A(d)(4) of the Securities Act, so long as the Notes are not freely transferable under the Securities Act.
SECTION 4.03. Corporate Existence. Subject to Article Three of this Supplemental Indenture, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, that, the Company will not be required to preserve any such right or franchise if the Board of Directors determines that the preservation of the right or franchise is no longer desirable in the conduct of the business of the Company and that its loss will not be disadvantageous in any material respect to the Holders.
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SECTION 4.04. Compliance Certificate. The Company will deliver to the Trustee within 120 days after the end of each Fiscal Year of the Company an Officers’ Certificate stating that in the course of the performance by the authorized signers of their duties as Officers of the Company they would normally have knowledge of any Default or Event of Default by the Company and whether or not the authorized signers know of any Default or Event of Default that occurred during the Fiscal Year. If they do, the Officers’ Certificate will describe the Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also will comply with TIA Section 314(a)(4). For the purposes of this Section 4.04, compliance is determined without regard to any grace period or requirement of notice under the Indenture or this Supplemental Indenture.
SECTION 4.05. Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture or this Supplemental Indenture.
SECTION 4.06. Limitations on Liens. The Company shall not, nor shall it permit any Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien that secures obligations under any Indebtedness, upon any of the Company’s or such Restricted Subsidiary’s properties or assets, whether owned on the Issue Date or thereafter acquired, unless (1) if such Lien secures Indebtedness which is ranking equal in right of payment with the Notes, then the Notes are secured by a Lien on the same properties or assets on an equal and ratable basis with the obligation so secured until such time as such obligation is no longer secured by a Lien, (2) if such Lien secures Indebtedness which is subordinated to the Notes, then the Notes are secured by a Lien on the same properties or assets and the Lien securing such Indebtedness is subordinated to the Lien granted to the Holders to the same extent as such Indebtedness is subordinated to the Notes or (3) such Lien is a Permitted Lien (as defined below).
The following Liens constitute “Permitted Liens”:
(1) Liens on property of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by the Company or any Restricted Subsidiary; provided, that, such Liens were in existence prior to, and were not created in contemplation of, such merger, consolidation or acquisition and do not extend to any assets other than those of the Person merged into or consolidated with the Company or a Restricted Subsidiary;
(2) Liens on property existing at the time of acquisition thereof by the Company or any Restricted Subsidiary; provided, that, such Liens were in existence prior to, and were not created in contemplation of, such acquisition and do not extend to any assets other than the property acquired;
(3) Liens imposed by law such as carriers’, warehouseman’s or mechanics’ Liens, and other Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;
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(4) Liens incurred in connection with pollution control, industrial revenue, water, sewage or any similar bonds;
(5) Liens securing Indebtedness representing, or incurred to finance, the cost of acquiring, constructing or improving any assets; provided, that, the principal amount of such Indebtedness does not exceed 100% of such cost, including construction charges;
(6) Liens on model homes, homes held for sale, homes that are under construction or under contract for sale, contracts for the sale of homes, land (improved or unimproved), contracts for the sale of land, project club houses, amenity centers and common areas, manufacturing plants, warehouses, distribution facilities or office buildings, and fixtures and equipment located at or on any of the foregoing or leasehold or other interests in any of the foregoing;
(7) Liens securing community development district bonds or similar bonds issued by any governmental authority to accomplish similar purposes;
(8) Liens securing Indebtedness (A) between a Restricted Subsidiary and the Company, or (B) between Restricted Subsidiaries;
(9) Liens on assets and properties of joint ventures or limited partnerships that are not wholly-owned Subsidiaries of the Company or any of the Guarantors;
(10) Liens incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance or return-of-money bonds, surety bonds or other obligations of a like nature, in each case which are not incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the Company’s business taken as a whole;
(11) pledges or deposits under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of indebtedness) or leases to which the Company or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of the Company or of any Restricted Subsidiary or deposits for the payment of rent, in each case incurred in the ordinary course of business;
(12) Liens granted to any bank or other institution on the payments to be made to such institution by the Company or any Subsidiary pursuant to any interest rate swap or similar agreement or foreign currency hedge, exchange or similar agreement designed to provide protection against fluctuations in interest rates and currency exchange rates, respectively; provided, that, such agreements are entered into in, or are incidental to, the ordinary course of business;
(13) Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set off or similar rights and remedies;
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(14) Liens arising from the Uniform Commercial Code financing statements regarding leases;
(15) Liens securing Indebtedness incurred to finance the acquisition, construction, improvement, development or expansion of a property which are given within 180 days of the acquisition, construction, improvement, development or expansion of such property and which are limited to such property;
(16) Liens incurred in connection with Non-Recourse Indebtedness;
(17) Liens existing on the Issue Date;
(18) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided, that, any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor;
(19) Liens securing refinancing Indebtedness; provided, that, any such Lien does not extend to or cover any property or assets other than the property or assets securing Indebtedness so refunded, refinanced or extended;
(20) easements, rights-of-way and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, licenses, restrictions on the use of property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the Company’s properties subject thereto; and
(21) any extensions, substitutions, modifications, replacements or renewals of the Permitted Liens described above.
Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien upon any of its properties or assets without equally and ratably securing the Notes if, at the time the Indebtedness secured by the Lien is incurred, the aggregate amount of all Indebtedness then outstanding secured by such Lien and all other Liens which are not Permitted Liens, together with the aggregate net sale proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, does not exceed 20% of Consolidated Net Tangible Assets.
SECTION 4.07. Sale-Leaseback Transactions. The Company shall not, and shall not permit any Restricted Subsidiary to, after the date hereof, enter into any Sale-Leaseback Transaction other than Permitted Sale-Leaseback Transactions (as defined below). The following Sale-Leaseback Transactions constitute “Permitted Sale-Leaseback Transactions”:
(1) a Sale-Leaseback Transaction involving the leasing by the Company or any Restricted Subsidiary of model homes in the Company’s communities, homes held for sale, homes that are under construction or under contract for sale, land (improved or unimproved), project club houses, amenity centers and common areas, manufacturing plants, warehouses, distribution facilities or office buildings;
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(2) a Sale-Leaseback Transaction relating to a property entered into within 180 days after (a) the date of acquisition of such property by the Company or a Restricted Subsidiary or (b) the date of the completion of construction or commencement of full operations on such property, whichever is later;
(3) a Sale-Leaseback Transaction where the Company, within 365 days after such Sale-Leaseback Transaction, applies or causes to be applied to (a) the retirement of any Funded Debt of the Company or any Restricted Subsidiary (other than Funded Debt which by its terms or the terms of the instrument by which it was issued is subordinate in right of payment to the Notes) or (b) the purchase by the Company or any Restricted Subsidiary of property substantially similar to the property sold or transferred, in each case, proceeds of the sale of such property, but only to the extent of the amount of proceeds so applied;
(4) a Sale-Leaseback Transaction where the Company or any Restricted Subsidiary would, on the effective date of such sale or transfer, be entitled, pursuant to this Supplemental Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon the relevant property, at least equal in amount to the then present value (discounted at the actual rate of interest of the Sale-Leaseback Transaction) of the obligation for the net rental payments in respect of such Sale-Leaseback Transaction without equally and ratably securing the Notes;
(5) a Sale-Leaseback Transaction between (a) the Company and any Restricted Subsidiary or (b) among Restricted Subsidiaries; provided, that, the lessor shall be the Company or a Restricted Subsidiary; and
(6) a Sale-Leaseback Transaction which has a lease of no more than three years in length.
Notwithstanding the foregoing, the Company may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback Transaction involving any real or tangible personal property which is not a Permitted Sale-Leaseback Transaction; provided, that, at the time of the Sale-Leaseback Transaction the aggregate net sales proceeds from all Sale-Leaseback Transactions which are not Permitted Sale-Leaseback Transactions, together with all Indebtedness secured by Liens other than Permitted Liens, does not exceed 20% of Consolidated Net Tangible Assets.
SECTION 4.08. Furnishing Guarantees. The Company shall cause each existing or future wholly-owned Subsidiary (i.e., directly or indirectly 100% owned) that guarantees a Credit Facility or any Capital Markets Indebtedness of the Company or guarantees the obligations of any Subsidiary as a guarantor of either the Credit Facilities or any Capital Markets Indebtedness, in each case, individually in an aggregate principal amount in excess of $100 million to become a Guarantor by causing such Subsidiary, as promptly as practicable, but in any event not later than thirty (30) days after the date on which such Subsidiary becomes a guarantor of any such Indebtedness of the Company or any Subsidiary, to execute and deliver to the Trustee a Guarantee in substantially the form of Exhibit B hereto and the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in the Indenture and this Supplemental Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with (which counsel, as to factual matters, may rely on an Officers’ Certificate).
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SECTION 4.09. Change of Control.
(1) If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the Notes by notifying the Holders to that effect as described in Section 2.02 above, the Company shall make an offer (a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part of that Holder’s Notes on the terms set forth in this Section 4.09; provided, that, the Notes shall be repurchased in multiples of $1,000 and if any Holder elects to have less than all of its Notes repurchased by the Company, the unpurchased portion of the Notes shall be equal to $2,000 or an integral multiple of $1,000 in excess thereof. In a Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of repurchase (a “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall send a notice to Holders, describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date that notice is sent, other than as may be required by law (a “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date.
(2) On each Change of Control Payment Date, the Company shall, to the extent lawful:
(a) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(b) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(c) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased and that all conditions precedent provided for herein to the Change of Control Offer and to the repurchase by the Company of Notes pursuant to the Change of Control Offer have been complied with.
(3) The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party repurchases all Notes properly tendered and not withdrawn under its offer. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and
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regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions herein, the Company will comply with those securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Offer provisions herein by virtue of any such conflict.
(4) As used herein:
“Change of Control” means the occurrence of any of the following: (a) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and the assets of its Subsidiaries, taken as a whole, to any person, other than the Company or one of its Subsidiaries; (b) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s outstanding Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; or (c) the Company consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction.
Notwithstanding the foregoing, a transaction (or series of related transactions) will not be deemed to involve a Change of Control under clause (b) above if, either:
(i) (A) the Company becomes a direct or indirect wholly-owned Subsidiary of a holding company and (B)(1) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (2) the shares of the Company’s Voting Stock outstanding immediately prior to such transaction are converted into or exchanged for, a majority of the Voting Stock of such holding company immediately after giving effect to such transaction; or
(ii) (A) Stuart Miller, together with members of his immediate family, directly or indirectly, becomes the beneficial owner of more than 50%, but less than 66- 2/3%, of the Company’s outstanding Voting Stock, measured by voting power rather than number of shares, and (B) immediately after such transaction or transactions, the Class A Common Stock is listed for trading on the New York Stock Exchange or The Nasdaq Global Market.
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The term “person,” as used in this definition of Change of Control, has the meaning given thereto in Section 13(d)(3) of the Exchange Act.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Event.
“Fitch” means Fitch Inc. and its successors.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, and the equivalent investment grade credit rating from any replacement Rating Agency or Rating Agencies selected by the Company.
“Moody’s” means Moody’s Investors Service, Inc. and its successors.
“Rating Agencies” means (1) Moody’s, S&P and Fitch; and (2) if any of Moody’s, S&P or Fitch ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons beyond the Company’s control, a “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act that is selected by the Company (as certified by a resolution of the Board of Directors) as a replacement rating agency for Moody’s, S&P or Fitch, or all of them, as the case may be.
“Rating Event” means the rating on the Notes is lowered independently by each of the Rating Agencies and the Notes are rated below an Investment Grade Rating independently by each of the Rating Agencies, in any case on any day during the period (which period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) commencing the earlier of (1) the first public notice of the occurrence of a Change of Control and (2) the first public notice of the Company’s intention to effect a Change of Control and ending 60 days following consummation of such Change of Control; provided, that a Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at our request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Rating Event).
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, and its successors.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, the capital stock of that person that is at the time entitled to vote generally in the election of the board of directors of that person.
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ARTICLE FIVE
DEFAULTS AND REMEDIES
Except as set forth in this Article Five to the contrary, the terms in Article Six of the Indenture shall govern.
SECTION 5.01. Events of Default. Pursuant to Section 2.02(11) of the Indenture, any one of the following events shall constitute an “Event of Default” hereunder and thereunder whenever used with respect to the Notes in this Supplemental Indenture (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) a default by the Company in the payment when due of interest on the Notes, which default continues for a period of 30 days;
(2) a default by the Company in the payment when due of the principal or Redemption Price or Repurchase Price due with respect to the Notes;
(3) a default by the Company or any Guarantor with respect to its obligation to pay Indebtedness for money borrowed by the Company or such Guarantor existing under any mortgage, indenture or instrument (other than any Non-Recourse Indebtedness), which default shall have resulted in the acceleration of, or be a failure to pay at final maturity, Indebtedness aggregating more than $150 million, and such acceleration does not cease to exist, or such Indebtedness is not satisfied, in either case, within 30 days after such acceleration;
(4) a failure to perform any other covenant or warranty of the Company herein or in the Indenture, which continues for 60 days after written notice as provided in the last paragraph of this Section 5.01;
(5) [reserved];
(6) the Company or any Significant Subsidiary, pursuant to any Bankruptcy Law applicable to the Company or such Significant Subsidiary: (a) commences a voluntary case; (b) consents to the entry of an order for relief against it or them in an involuntary case against it or them; (c) consents to the appointment of a Custodian of it or them or for any substantial part of its or their property; or (d) makes a general assignment for the benefit of its or their creditors; or
(7) a court of competent jurisdiction enters an order or decree under any applicable Bankruptcy Law: (a) for relief in an involuntary case against the Company or any Significant Subsidiary; (b) appointing a Custodian of the Company or any Significant Subsidiary or for any substantial part of its or their respective property; or (c) ordering the winding up or liquidation of the Company or any Significant Subsidiary; and the order or decree remains unstayed and in effect for 90 days.
The Company will deliver to the Trustee, within 20 days after it occurs, written notice in the form of an Officers’ Certificate of any event of which the Company is aware which with the giving of notice and the lapse of time would become an Event of Default, its status and what action the Company is taking or proposes to take with respect to it.
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A Default under clause (4) of this Section 5.01 is not an Event of Default until the Holders of at least 25% in principal amount of the then outstanding Notes with regard to which the Company has failed to comply with a covenant or agreement notify the Company and the Trustee of the Default and the Company does not cure the Default within 60 days after the giving of the notice. The notice must reference the Indenture and this Supplemental Indenture and the Notes, specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.” The Company will deliver to the Trustee, within 20 days after it occurs, written notice in the form of an Officers’ Certificate of any event of which the Company is aware which with the giving of notice and the lapse of time would become an Event of Default under clause (4), its status and what action the Company is taking or proposes to take with respect to it.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default occurs and is continuing, unless the principal of the Notes has already become due and payable, the Trustee by notice to the Company, or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding by notice to the Company and the Trustee, may declare the outstanding principal of the Notes and any accrued and unpaid interest through the date of such declaration on all of the Notes to be immediately due and payable. Upon such a declaration, such outstanding principal amount and accrued and unpaid interest, if any, shall be due and payable immediately. If an Event of Default specified in Section 5.01(6) or Section 5.01(7) of this Supplemental Indenture occurs and is continuing, the outstanding principal amount of the Notes shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. The Holders of a majority in aggregate principal amount of the Notes then outstanding, on behalf of the Holders of all of the Notes, by notice to the Company and the Trustee (and without notice to any other Holder), may rescind any acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of the outstanding principal amount of any of the Notes that has become due solely as a result of acceleration and if all amounts due to the Trustee under Section 7.07 of the Indenture have been paid. No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereto.
In case the Trustee shall have proceeded to enforce any right under this Supplemental Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders of Notes, and the Trustee shall be restored respectively to their several positions and rights hereunder and all rights, remedies and powers of the Company, the Holders of Notes, and the Trustee shall continue as though no such proceeding had been taken.
The Trustee shall within 90 days after a Trust Officer has knowledge of the occurrence of a payment Default or written notice of any Event of Default, send to all Holders, as the names and addresses of such Holders appear upon the Note register, notice of all Defaults or Events of Default known to a Trust Officer, unless such Default or Event of Default is cured or waived before the giving of such notice; provided, that, except in the case of default in the payment of
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the principal, interest, Redemption Price or Repurchase Price, as the case may be, on any of the Notes, the Trustee shall be protected in withholding such notice if and so long as a trust committee of officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders; and provided, further, in the case of any Default under Section 5.01(3) of this Supplemental Indenture, no such notice to Holders shall be given until the end of the 30-day grace period referred to therein.
The Holders of a majority in principal amount of the Notes then outstanding shall have the right to direct the time, method and place of conducting any proceedings for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee, subject to the limitations specified in the Indenture and this Supplemental Indenture.
SECTION 5.03. Waiver of Existing Defaults. The Holders of a majority in aggregate principal amount of the Notes then outstanding, on behalf of the Holders of all the Notes, by notice to the Trustee may consent to the waiver of any past Default with regard to the Notes and its consequences except (i) a default in the payment of interest or premium, if any, on, or the principal of, Notes, (ii) a default arising from a failure to redeem or repurchase any Notes as required under this Supplemental Indenture or (iii) a default in respect of any covenant or a provision that under Section 9.02 of the Indenture or Section 7.02 of this Supplemental Indenture cannot be modified or amended without the consent of the Holders of all Notes then outstanding. The defaults described in clauses (i), (ii) and (iii) in the previous sentence may be waived with the consent of the Holders of all Notes then outstanding. When a Default or Event of Default is waived, it is deemed cured and not continuing, but no waiver will extend to any subsequent or other Default or impair any consequent right. Without limiting the provisions of Section 7.07 of the Indenture, the Trustee shall be compensated by the Company for all costs and expenses incurred by it in connection with any action taken by it pursuant to this Section 5.03.
SECTION 5.04. Limitation on Suits. Pursuant to Section 2.02(11) of the Indenture, no Holders of the Notes may pursue a remedy with respect to the Indenture or the Notes unless:
(1) such Holder gives to the Trustee written notice stating that an Event of Default as to the Notes is continuing;
(2) the Holders of at least a majority in principal amount of the Notes then outstanding make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity, and the Event of Default has not been waived; and
(5) the Trustee has received no contrary direction from the Holders of a majority in principal amount of the Notes then outstanding during such 60-day period.
No holder of the Notes may use the Indenture to prejudice the rights of another Holder of the Notes or to obtain a preference or priority over another Holder of the Notes.
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ARTICLE SIX
DISCHARGE OF SUPPLEMENTAL INDENTURE
Except as set forth in this Article Six to the contrary, the terms in Article Eight of the Indenture shall govern.
SECTION 6.01. Discharge of Supplemental Indenture. When (1) the Company shall deliver to the Trustee for cancellation all Notes theretofore authenticated (other than any Notes which have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled, or (2) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year, whether at stated maturity or upon redemption and the Company shall deposit with the Trustee, in trust, monies and/or U.S. Government Obligations sufficient to pay at the Maturity Date or Redemption Date, as applicable, all sums which will become due with regard to all Notes theretofore authenticated (other than any Notes which shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled or delivered to the Trustee for cancellation, including the principal amount and interest accrued to the Maturity Date or Redemption Date, as applicable, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then the Indenture and this Supplemental Indenture shall cease to be of further effect with respect to the Notes (except as to (i) remaining rights of registration of transfer, substitution and exchange of Notes, (ii) rights hereunder of Holders to receive payments of the principal amount, including interest due with respect to the Notes and the other rights, duties and obligations of Holders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (iii) the rights, obligations and immunities of the Trustee hereunder and under the Indenture with respect to the Notes), and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel as required by Section 6.05 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging the Indenture and this Supplemental Indenture with respect to the Notes; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee, and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee, in connection with the Indenture with respect to the Notes, this Supplemental Indenture or the Notes.
SECTION 6.02. Application of Trust Money. Subject to Section 6.03, the Trustee will hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 6.01. It will apply the deposited money and the money from the U.S. Government Obligations through the Paying Agent and in accordance with this Supplemental Indenture to the payment of principal of, premium, if any, and interest, if any, on the Notes with regard to which the money or U.S. Government Obligations were deposited. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 6.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Notes.
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SECTION 6.03. Repayment to the Company. The Trustee and the Paying Agent will promptly pay to the Company upon request any excess money or securities held by them at any time. The Trustee and the Paying Agent will pay to the Company upon request any money held by them for the payment of principal, premium or interest that remains unclaimed for two years. After such payment, all liability of the Trustee and the Paying Agent with respect to that money will cease.
SECTION 6.04. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 6.02 by reason of any order or judgment of any court of governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under the Indenture and this Supplemental Indenture shall be revived and reinstated with respect to the Notes as though no deposit had occurred pursuant to Section 6.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 6.02; provided, that, if the Company makes any payment of principal amount or Redemption Price or Repurchase Price of or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
SECTION 6.05. Officers’ Certificate; Opinion of Counsel. Upon any application or demand by the Company to the Trustee to take any action under Section 6.01, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in the Indenture and this Supplemental Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with (which counsel, as to factual matters, may rely on an Officers’ Certificate).
Each such Officers’ Certificate and Opinion of Counsel provided for in this Supplemental Indenture and delivered to the Trustee with respect to compliance with a condition or covenant pursuant to the previous paragraph shall comply with the provisions of Section 12.05 of the Indenture.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
Except as set forth in this Article Seven to the contrary, the terms in Article Nine of the Indenture shall govern.
SECTION 7.01. Without Consent of Holders. In addition to those matters described in Section 9.01 of the Indenture which permit the Company and the Trustee to amend or supplement the Indenture or the Notes without the consent of the Holders, the Company and the Trustee may amend or supplement the Indenture, this Supplemental Indenture or the Notes without the consent of the Holders:
(1) to cure any ambiguity, defect or inconsistency that does not adversely affect the rights of any Holder,
(2) to make any change that does not adversely affect the rights of any Holder,
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(3) to add to the covenants of the Company further covenants, restrictions or conditions that the Board of Directors shall consider to be for the benefit of the Holders of Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Supplemental Indenture;
(4) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes;
(5) to modify, eliminate or add to the provisions of this Supplemental Indenture to such extent as shall be necessary for this Supplemental Indenture to comply with the TIA, or under any similar federal statute hereafter enacted; or
(6) to conform the text of the Indenture, the Notes or any Guarantee of the Notes to any corresponding provisions of the “Description of Debt Securities” or “Description of Notes” or similar provisions in any prospectus or prospectus supplement filed with the SEC in respect of the Notes, including the Prospectus dated April 10, 2026 and the Prospectus Supplement dated October 13, 2026.
SECTION 7.02. With Consent of Holders. In addition to those matters described in Section 9.02 of the Indenture which require the consent of the Holder so affected to amend, supplement or waive any provision of the Indenture or this Supplemental Indenture, without the consent of each Holder so affected, no amendment, supplement or waiver (including a waiver pursuant to Section 5.03) may:
(1) extend the fixed maturity of any Note or any installment of interest thereon, reduce the principal amount, interest rate, Redemption Price, Repurchase Price or amount due upon acceleration, impair the right of a Holder to institute suit for the payment thereof or change the currency in which the Notes are payable,
(2) reduce the percentage of Notes the Holders of which are required to consent to an amendment, supplement or waiver,
(3) release any Guarantor except as provided in Article Eight hereof, or
(4) make any change in Section 5.02, Section 5.03 or this Section 7.02.
ARTICLE EIGHT
GUARANTEE OF NOTES
SECTION 8.01. Unconditional Guarantee. Except as provided in Section 8.02 or Section 8.04, each Guarantor hereby jointly and severally, unconditionally and irrevocably guarantees (such guarantee to be referred to herein as a “Guarantee”) to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, that: (a) all amounts due with respect to the Notes shall be duly and punctually paid in full when due, whether at maturity, by acceleration or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Notes and all other obligations of the
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Company or the Guarantors to the Holders or the Trustee hereunder, thereunder or under the Indenture and all other obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders under this Supplemental Indenture or under the Notes or the Indenture, 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 this Supplemental Indenture or the Notes shall constitute an event of default under each Guarantee, and shall entitle the Holders of Notes to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.
Each of the Guarantors hereby agrees that, subject to Section 8.02 and Section 8.04, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes, this Supplemental Indenture or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each of the Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, this Supplemental Indenture, the Indenture and its Guarantee. Each Guarantee is a guarantee of payment and not of collection. Each Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (a) subject to this Article Eight, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of each 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 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of each Guarantee.
No director, officer, employee, incorporator, stockholder or partner, as such, past, present or future, of any Guarantor, as such, shall have any personal liability under any Guarantee by reason of his, her or its status as such director, officer, employee, incorporator, stockholder or partner.
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.
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SECTION 8.02. Limitations on Guarantees; Release of Particular Guarantors’ Obligations. 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 Guarantors in respect of the obligations of such other Guarantors under their respective Guarantees or pursuant to their contribution obligations under this Supplemental 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.
If any Guarantor is released from its guarantee under or otherwise no longer guarantees any Credit Facility (to the extent such guarantor guarantees any Credit Facility) or any Capital Markets Indebtedness which resulted in the obligation to provide such guarantee 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 and a Restricted Subsidiary. For the avoidance of doubt, the release of a Guarantor from its Guarantee of the Notes under this Article 8 may be conditioned upon the substantially concurrent release of a guarantee under a Credit Facility and/or Capital Market Indebtedness so long as after giving effect to all such transactions, a Guarantor is not required to Guarantee the Notes pursuant to Section 4.08.
To the extent requested by the Company, delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel, the Trustee shall execute such instruments reasonably requested by and prepared by the Company evidencing the release of a Guarantor from, and the termination of, its obligations under its Guarantee of the Notes under this Article Eight.
SECTION 8.03. Execution and Delivery of Guarantee. To further evidence the Guarantee set forth in Section 8.01, each Guarantor hereby agrees to execute and deliver to the Trustee a Guarantee in substantially the form of Exhibit B hereto. Such Guarantee shall be executed on behalf of each Guarantor by either manual or electronic signature of an officer or authorized signatory of each Guarantor, each of whom, in each case, shall have been duly authorized to so execute by all requisite corporate action. The validity and enforceability of any Guarantee shall not be affected by the fact that it is not affixed to any Note or Notes.
If an officer or authorized signatory of a Guarantor whose signature is on this Supplemental Indenture or a Guarantee no longer holds that office at the time the Trustee authenticates a Note to which such Guarantee relates or at any time thereafter, such Guarantor’s Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee set forth in this Supplemental Indenture on behalf of each Guarantor.
SECTION 8.04. Release of a Guarantor in Connection with a Sale. If no Default exists or would exist under the Indenture and this Supplemental Indenture, upon the sale or disposition of all or substantially all of the assets of a Guarantor, or all of the Capital Stock of a Guarantor (including by consolidation, merger, issuance or otherwise), 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 a Subsidiary), or if any Guarantor is dissolved or liquidated, such Guarantor and each Subsidiary of such Guarantor that is also a Guarantor, or the Person acquiring such assets (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor), shall be deemed automatically and unconditionally released and discharged from all of its obligations under this Article Eight without any further action required on the part of the Trustee or any Holder.
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Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel, each of which shall comply with the provisions of Section 12.05 of the Indenture, stating that all conditions precedent provided for in the Indenture and this Supplemental Indenture relating to the release of such Guarantor have been complied with (which counsel, as to factual matters, may rely on an Officers’ Certificate), 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 of the Notes under this Article Eight.
Nothing contained in the Indenture, this Supplemental Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.
SECTION 8.05. Waiver of Subrogation. Until this Supplemental Indenture is discharged and all of the Notes are discharged and paid in full, each Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company’s obligations under the Notes, this Supplemental Indenture or the Indenture and such Guarantor’s obligations under its Guarantee and this Supplemental Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy of the Holders against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and any amounts owing to the Trustee or the Holders of Notes under the Notes, this Supplemental Indenture, 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 this Supplemental Indenture. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Supplemental Indenture and that the waiver set forth in this Section 8.05 is knowingly made in contemplation of such benefits.
SECTION 8.06. No Set-Off. Each payment to be made by a Guarantor hereunder in respect of the 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.
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SECTION 8.07. 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 8.08. Obligations Continuing. Except as provided in Section 8.02 or Section 8.04, 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 and the Holders 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 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 8.09. Obligations Not Reduced. Except as otherwise provided in Section 8.02 and Section 8.04, 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 this Supplemental Indenture pursuant to Article Six be or become owing or payable under or by virtue of or otherwise in connection with the Notes, this Supplemental Indenture or the Indenture.
SECTION 8.10. 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 8.11. Obligations Not Affected. Except as otherwise provided in Section 8.02 and Section 8.04, 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:
(1) 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;
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(2) any irregularity, defect, unenforceability or invalidity in respect of any indebtedness or other obligation of the Company or any other Person under the Indenture, this Supplemental Indenture, the Notes or any other document or instrument;
(3) any failure of the Company, whether or not without fault on its part, to perform or comply with any of the provisions of this Supplemental Indenture, the Notes or the Indenture, or to give notice thereof to a Guarantor;
(4) 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;
(5) the granting of time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other Person;
(6) any change in the time, manner or place of payment of, or in any other term of, any of the Notes, or any other amendment, variation, supplement, replacement or waiver of, or any consent to departure from, any of the Notes, this Supplemental Indenture or the Indenture, including, without limitation, any increase or decrease in any amount due with respect to any of the Notes;
(7) any change in the ownership, control, name, objects, businesses, assets, capital structure or constitution of the Company or a Guarantor;
(8) any merger or amalgamation of the Company or a Guarantor with any Person or Persons;
(9) 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
(10) any other circumstance (other than by complete, irrevocable payment) that might otherwise constitute a legal or equitable discharge or defense of the Company under this Supplemental Indenture, the Notes or the Indenture or of a Guarantor in respect of its Guarantee hereunder.
SECTION 8.12. Waiver. Without in any way limiting the provisions of Section 8.01 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.
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SECTION 8.13. 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 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 or under this Supplemental Indenture.
SECTION 8.14. 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:
(1) grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other Person;
(2) take or abstain from taking security or collateral from the Company or from perfecting security or collateral of the Company;
(3) 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 this Supplemental Indenture or the Notes;
(4) accept compromises or arrangements from the Company;
(5) apply all monies at any time received from the Company or from any security upon such part of the Obligations 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
(6) 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 8.15. Default and Enforcement. If any Guarantor fails to pay in accordance with Section 8.01 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 8.16. Amendment, etc. No amendment, modification or waiver of any provision 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 or affect the obligations of any other Guarantor unless it is signed by such Guarantor and the Trustee.
SECTION 8.17. Acknowledgment. Each Guarantor hereby acknowledges communication of the terms of this Supplemental Indenture, the Notes and the Indenture and consents to and approves of the same.
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SECTION 8.18. Costs and Expenses. Each Guarantor shall pay on demand by the Trustee any and all costs, fees and expenses (including, without limitation, legal fees) incurred by the Trustee, its agents, advisors and counsel or any of the Holders in enforcing any of their rights under any Guarantee.
SECTION 8.19. 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, this Supplemental 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 Notes, the Indenture or the Guarantees, 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, the Notes or the Guarantees 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 this Supplemental Indenture, the Notes, the Indenture 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 8.20. 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 8.01 shall survive until the indefeasible payment in full of the Obligations 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 8.21. Guarantee in Addition to Other Obligations. The obligations of each Guarantor under its Guarantee and this Supplemental 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 this Supplemental Indenture or the Notes and any guarantees or security at any time held by or for the benefit of any of them.
SECTION 8.22. Severability. Any provision of this Article Eight 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 this Supplemental Indenture and this Article Eight.
SECTION 8.23. Successors and Assigns. Each Guarantee shall be binding upon and inure to the benefit of each Guarantor and the Trustee and the Holders and their respective successors and permitted assigns, except that no Guarantor may assign any of its Obligations hereunder or thereunder.
SECTION 8.24. Acknowledgement under TIA. Each Guarantor acknowledges that, by virtue of its Guarantee, it is becoming an “obligor” on indenture securities under the TIA.
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ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. TIA Controls. If any provision hereof limits, qualifies or conflicts with the duties imposed by Sections 310 through 317 of the TIA, the imposed duties shall control.
SECTION 9.02. Conflict with Indenture. To the extent not expressly amended or modified by this Supplemental Indenture, the Indenture shall remain in full force and effect. If any provision of this Supplemental Indenture relating to the Notes is inconsistent with any provision of the Indenture, the provision of this Supplemental Indenture shall control with regard to the Notes.
SECTION 9.03. Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by email, by telecopier or overnight courier guaranteeing next-day delivery or registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company or the Guarantors:
Lennar Corporation
5505 Waterford District Drive
Miami, Florida 33126
Attention: General Counsel
with a copy, which shall not constitute notice, to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Attention: Lillian Tsu
Email: lillian.tsu@cgsh.com
if to the Trustee:
The Bank of New York Mellon
240 Greenwich Street
New York, NY 10286
Attention: Corporate Trust Administration
Email: corpsov1@bny.com
With a copy to:
The Bank of New York Mellon
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Logan Zamperini or Corporate Trust Administration
Email: logan.zamperini@bny.com or corpsov1@bny.com
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Each of the Company, the Guarantors and the Trustee by written notice to the other may designate additional or different addresses for notices to such Person. Any notice or communication to the Company, the Guarantors or the Trustee shall be deemed to have been given or made as of the date so delivered if emailed or hand delivered; and five (5) calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed by first class mail, certified or registered return receipt requested, or by overnight courier guaranteeing next day delivery to its address as it appears on the registration books of the Registrar; provided, that, notices given to Holders holding Notes in book-entry form may be given through the facilities of the Depositary or any successor depository. Any notice or communication shall be mailed to any Person as described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
SECTION 9.04. Electronic Instructions/Directions. The Trustee and Paying Agent shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to the Indenture and delivered using Electronic Means (as defined below); provided, however, that the Company shall provide to the Trustee and Paying Agent an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee and Paying Agent Instructions using Electronic Means and the Trustee and Paying Agent, each in their discretion elect to act upon such Instructions, its understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee and Paying Agent cannot determine the identity of the actual sender of such Instructions and that the Trustee and Paying Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee and Paying Agent have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and Paying Agent and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee and Paying Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from their reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee and Paying Agent, including without limitation the risk of the Trustee and Paying Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and Paying Agent and that there may be more
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secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee and Paying Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee and Paying Agent, or another method or system specified by the Trustee and Paying Agent as available for use in connection with its services hereunder.
SECTION 9.05. Governing Law. This Supplemental Indenture and the Notes, and any claim, controversy or dispute arising under or related to this Supplemental Indenture or the Notes or guarantees, shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the General Obligations Law of the State of New York, but otherwise without regard to conflict of laws rules that would apply the laws of any other jurisdiction. Each of the parties hereto agrees to submit to the jurisdiction of the courts of the State of New York sitting in the County of New York, in the Borough of Manhattan in New York City, or of the United States of America for the Southern District of New York in any action or proceeding arising out of or relating to this Supplemental Indenture or the Notes.
SECTION 9.06. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE GUARANTORS, EACH HOLDER BY PURCHASE OF ITS NOTE AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 9.07. Successors. All agreements of the Company in the Indenture, this Supplemental Indenture and the Notes shall bind its successors and permitted assigns. All agreements of the Trustee in the Indenture and this Supplemental Indenture shall bind its successors and permitted assigns.
SECTION 9.08. 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. Delivery of an executed counterpart by electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. The words “execution,” “signed,” “signature,” and words of like import in this Supplemental Indenture shall include images of manually executed signatures transmitted by electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature (provided, any such electronic signature is a true representation of the signer’s actual signature) or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
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SECTION 9.09. Reserved
SECTION 9.10. No Personal Liability. No director, officer, employee, incorporator, stockholder or partner, as such, past, present or future, of the Company, any of its successor corporations or any Subsidiary of the foregoing shall have any liability for any Obligations of the Company under the Notes or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.
SECTION 9.11. Concerning the Trustee.
(1) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(2) Whenever in the administration of the Indenture or this Supplemental Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may conclusively rely upon an Officers’ Certificate and/or Opinion of Counsel.
(3) Subject to Section 7.01 of the Indenture, if an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture or this Supplemental Indenture at the request or direction of any of the Holders pursuant to this Supplemental Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee in its sole discretion against any loss, liability, or expense which might be incurred by it in compliance with such request or direction, and the Trustee shall have no liability for acting at the direction of requisite Holders.
(4) In no event shall the Trustee be responsible or liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
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(5) Except with respect to an Event of Default listed in clause (1) or (2) of Section 5.01, the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer in the Corporate Trust Office of the Trustee has received written notice of any event which is in fact such a default, and such notice references the Notes, the Indenture and this Supplemental Indenture.
(6) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(7) Pursuant to Section 9.04 hereof, the Trustee may request that the Company deliver an incumbency certificate setting forth the names of individuals, direct dial telephone numbers, and titles of officers authorized at such time to take specified actions pursuant to the Indenture and this Supplemental Indenture.
(8) The Trustee may rely on and act in accordance with advice of counsel or an Opinion of Counsel without liability.
(9) The Trustee is entitled to reimbursement and indemnity as set forth in Article VII of the Indenture, except to the extent any loss, expense or liability was incurred due to the Trustee’s own negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable order.
SECTION 9.12. Severability. In case any one or more of the provisions in this Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 9.13. FATCA. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to the Indenture and this Supplemental Indenture, the Company agrees (a) to provide to The Bank of New York Mellon upon its request information in the Company’s possession about applicable parties and/or transactions (including any modification to the terms of such transactions) so that The Bank of New York Mellon can determine whether it has tax related obligations under Applicable Law, and (b) that The Bank of New York Mellon shall be entitled to make any withholding or deduction from payments under the Indenture or this Supplemental Indenture to the extent necessary to comply with Applicable Law for which The Bank of New York Mellon shall not have any liability to the Company for its withholding or deduction from payment under the Indenture or this Supplemental Indenture to the extent necessary to comply with Applicable Law.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused it to be duly executed as of the day and year first above written.
| LENNAR CORPORATION | ||
| By: | /s/ Lauren Dudley | |
| Name: Lauren Dudley | ||
| Title: Vice President and Treasurer | ||
| Authorized signatory for each of the Guarantors listed on Schedule I hereto | ||
| By: | /s/ Katherine Lee Martin | |
| Name: Katherine Lee Martin | ||
| Title: Authorized Signatory | ||
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | /s/ Glenn G. McKeever | |
| Name: Glenn G. McKeever | ||
| Title: Vice President | ||
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EXHIBIT A
FORM OF NOTE
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. REPRESENTATIVE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
CUSIP No.: 526057DA92
LENNAR CORPORATION
5.950% SENIOR NOTES DUE 2032
| No.___ | $_______ |
LENNAR CORPORATION, a Delaware corporation (the “Company,” which term includes any successor entities), for value received, promises to pay to CEDE & CO., or registered assigns, on January 15, 2032 (the “Maturity Date”), the principal amount of [ ] Dollars ($ ), together with interest thereon as hereinafter provided.
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, Lennar Corporation has caused this instrument to be duly executed manually or electronically.
| LENNAR CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
Dated: _________________________
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-
mentioned Indenture and Supplemental Indenture.
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
| Dated: | ||
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LENNAR CORPORATION
5.950% SENIOR NOTES DUE 2032
Capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture relating to the Notes, dated as of December 31, 1997 (as amended from time to time, the “Indenture”), between Lennar Corporation, a Delaware corporation (the “Company”), and The Bank of New York Mellon, as successor trustee (the “Trustee”), as amended and supplemented by the Supplemental Indenture described below.
| 1. | INTEREST |
The Company promises to pay interest on the principal amount of this Note at the rate per annum set forth above. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Issue Date. The Company shall pay interest semi-annually in arrears on each Interest Payment Date, commencing on January 15, 2027, on the Maturity Date and upon redemption. Interest will be computed on the basis of a 360-day year of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed.
Subject to the terms and conditions of the Supplemental Indenture, payments of the Redemption Price, Change of Control Payment, principal and interest that are not made when due will accrue interest per annum at the rate of interest borne by the Notes, plus 1%, from and including, the relevant payment date to, but excluding, the date on which such defaulted amounts shall have been paid by the Company in accordance with the Indenture; provided, however that if any payment on the Notes is due on a day other than a Business Day, such payment may be made on the next succeeding Business Day with the same force and effect as if made on the date that the relevant payment was due, and no interest shall accrue for the intervening period.
| 2. | METHOD OF PAYMENT |
Subject to the terms and conditions of the Supplemental Indenture, the Company shall (a) pay interest on the Notes (except defaulted interest) to the Persons who are the registered Holders of Notes at the close of business on the Record Date immediately preceding the Interest Payment Date even if the Notes are canceled, transferred or exchanged after such Record Date, and (b) make all other payments in respect of the Notes to the Persons who are registered Holders of Notes at the close of business on the Business Day preceding the Redemption Date or the Maturity Date, as the case may be. Holders must surrender Notes to a Paying Agent to collect such payments in respect of the Notes referred to in clause (b) of the preceding sentence. The Company shall pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make the cash payments by check payable in such money.
| 3. | PAYING AGENT AND REGISTRAR |
Initially, The Bank of New York Mellon, a New York banking corporation, shall act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Registrar or co-registrar.
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| 4. | SUPPLEMENTAL INDENTURE |
The Company is issuing the Notes under the Indenture, as amended and supplemented by the Seventeenth Supplemental Indenture, dated as of October 15, 2026 (as amended or supplemented, the “Supplemental Indenture”), among the Company, the Guarantors named therein and the Trustee. This Note is one of a duly authorized issue of Notes of the Company designated as its 5.950% Senior Notes due 2032 (the “Notes”). The Notes include the Notes to be issued on the Issue Date and any additional Notes issued under the Supplemental Indenture at any time thereafter, all of which Notes are treated as a single class of securities under the Indenture and the Supplemental Indenture.
The terms of the Notes include those stated in the Indenture and the Supplemental Indenture and those made part of the Indenture and the Supplemental Indenture by reference to the Trust Indenture Act of 1939 (the “TIA”), as in effect on the date of the Supplemental Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture, the Supplemental Indenture and the TIA for a statement of such terms. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture and the Supplemental Indenture, as the same may be amended from time to time in accordance with their respective terms.
The Notes are general unsecured, unsubordinated obligations of the Company in the aggregate principal amount of $300,000,000 to be issued on the Issue Date; provided, that, the Company may, without notice to or the consent of the Holders, issue additional Notes under the Supplemental Indenture at any time thereafter. Neither the Indenture nor the Supplemental Indenture limits other indebtedness of the Company.
| 5. | REDEMPTION AT THE OPTION OF THE COMPANY |
No sinking fund is provided for the Notes. Prior to December 15, 2031 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the Redemption Date, and |
| (2) | 100% of the principal amount of the Notes to be redeemed, plus, in either case, any accrued and unpaid interest thereon to, but excluding, the Redemption Date. |
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On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed plus any accrued and unpaid interest thereon to, but excluding, the Redemption Date. The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the Redemption Price promptly after the calculation thereof and the Trustee shall have no duty to determine, or verify the calculation of, the Redemption Price.
| 6. | NOTICE OF REDEMPTION AT THE OPTION OF THE COMPANY |
Notice of redemption at the option of the Company shall be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary (or another depositary’s) procedures) at least 10 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed. Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date interest will cease to accrue on the Notes or portions thereof called for redemption. In the case of a partial redemption, selection of certificated Notes for redemption will be made by lot. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any certificated Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new certificated Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original certificated Note. For so long as the Notes are held by the Depositary (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the Depositary.
Notice of any redemption of Notes in connection with a transaction or an event may, at the Company’s discretion, be given prior to the completion or the occurrence thereof. Any redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of a related transaction or event. At the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed. The Company will provide written notice to the Trustee as soon as practicable but in any event no later than two days prior to the Redemption Date if any such redemption has been rescinded or delayed, and upon receipt and at the Company’s request the Trustee will provide such notice to each Holder of the Notes to be redeemed in the same manner in which the notice of redemption was given.
| 7. | DENOMINATIONS; TRANSFER; EXCHANGE |
The Notes are in registered form, without coupons, in denominations of $2,000 and integral multiples of $1,000 in excess thereof. A Holder may transfer Notes only in accordance with the Supplemental Indenture and the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any governmental taxes and fees required by law or permitted by the Supplemental Indenture. The Registrar need not transfer or exchange any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) or any Notes for a period of 15 days before any selection of Notes to be redeemed.
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| 8. | PERSONS DEEMED OWNERS |
The registered Holder of this Note may be treated as the owner of this Note for all purposes.
| 9. | UNCLAIMED MONEY OR PROPERTY |
The Trustee and the Paying Agent shall return to the Company upon written request any money or property held by them for the payment of any amount with respect to the Notes that remains unclaimed for two years; provided, that, the Trustee or such Paying Agent, before being required to make any such return, shall at the expense of the Company cause to be published once in a newspaper of general circulation in The City of New York or mail to each such Holder notice that such money or property remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed money or property then remaining shall be returned to the Company. After return to the Company, Holders entitled to the money or property must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and Paying Agent with respect to the money or property will cease.
| 10. | AMENDMENT; WAIVER |
Subject to certain exceptions set forth in the Indenture and the Supplemental Indenture, (i) the Supplemental Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in aggregate principal amount of the Notes at the time outstanding and (ii) certain defaults or noncompliance with certain provisions may be waived with the written consent of the Holders of a majority in aggregate principal amount of the Notes at the time outstanding. Subject to certain exceptions set forth in the Indenture and the Supplemental Indenture, without the consent of any Holder, the Company and the Trustee may amend the Supplemental Indenture or the Notes to cure any ambiguity, defect or inconsistency, to make any change that does not adversely affect the right of any Holder, to evidence the succession of another corporation to the Company (or successive successions) and the assumption by the successor corporation of the covenants, agreements and obligations of the Company, to add to the covenants of the Company such further covenants, restrictions or conditions as the Board of Directors shall consider to be for the benefit of the Holders of Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in the Supplemental Indenture and the Indenture, to evidence and provide for the acceptance of appointment hereunder of a successor Trustee with respect to the Notes, to modify, eliminate or add to the provisions of the Supplemental Indenture to such extent as shall be necessary for the Supplemental Indenture to comply with the TIA, or under any similar federal statute hereafter enacted, or to conform the text of the Indenture, the Supplemental Indenture, the Notes or any Guarantee of the Notes to any corresponding provisions of the “Description of Debt Securities” or “Description of Notes” or similar provisions in any prospectus or prospectus supplement filed with the SEC in respect of the Notes, including the Prospectus dated April 10, 2026 and the Prospectus Supplement dated October 13, 2026.
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| 11. | DEFAULTS AND REMEDIES |
Under the Supplemental Indenture, Events of Default include (i) a default by the Company in the payment of any interest which continues for more than 30 days after the due date; (ii) a default by the Company in the payment of any principal or Redemption Price or Repurchase Price due with respect to the Notes; (iii) a default by the Company or any Guarantor with respect to its obligation to pay Indebtedness for money borrowed by the Company or such Guarantor existing under any mortgage, indenture or instrument (other than any Non-Recourse Indebtedness), which default shall have resulted in the acceleration of, or be a failure to pay at final maturity, Indebtedness aggregating more than $150 million, and such acceleration does not cease to exist, or such Indebtedness is not satisfied, in either case, within 30 days after such acceleration; (iv) a failure to perform any other covenant or warranty of the Company in the Supplemental Indenture or in the Indenture, which continues for 60 days after written notice; (v) [reserved]; (vi) the Company or any Significant Subsidiary, pursuant to any Bankruptcy Law applicable to the Company or such Significant Subsidiary: (A) commences a voluntary case; (B) consents to the entry of an order for relief against it or them in an involuntary case against it or them; (C) consents to the appointment of a Custodian of it or them or for any substantial part of its or their property; or (D) makes a general assignment for the benefit of its or their creditors; or (vii) a court of competent jurisdiction enters an order or decree under any applicable Bankruptcy Law: (A) for relief in an involuntary case against the Company or any Significant Subsidiary; (B) appointing a Custodian of the Company or any Significant Subsidiary or for any substantial part of its or their respective property; or (C) ordering the winding up or liquidation of the Company or any Significant Subsidiary; and the order or decree remains unstayed and in effect for 90 days. If an Event of Default occurs and is continuing, the Trustee, or the Holders of at least 25% in aggregate principal amount of the Notes at the time outstanding, may declare the outstanding principal of the Notes and any accrued and unpaid interest through the date of such declaration on all of the Notes to be immediately due and payable. The events of bankruptcy or insolvency described in clauses (vi) and (vii) above are Events of Default which shall result in the outstanding principal amount of all Notes being declared due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Supplemental Indenture, the Indenture or the Notes except as provided in the Indenture and the Supplemental Indenture. The Trustee may refuse to enforce the Indenture, the Supplemental Indenture and the Notes unless it receives indemnity or security satisfactory to it. Subject to certain limitations, conditions and exceptions, Holders of a majority in aggregate principal amount of the Notes at the time outstanding may direct the Trustee in its exercise of any trust or power, including the annulment of a declaration of acceleration. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of amounts specified in clauses (i) and (ii) above) if it determines that withholding notice is in their interests.
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| 12. | TRUSTEE DEALINGS WITH THE COMPANY |
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 13. | NO RECOURSE AGAINST OTHERS |
A director, officer, employee, incorporator, stockholder or partner, as such, of the Company, any of the Company’s successor corporations or any Subsidiary of the foregoing shall not have any liability for any obligations of the Company under the Notes or the Supplemental Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
| 14. | GUARANTEES |
This Note will be entitled to the benefits of certain Guarantees, if any, made for the benefit of the Holders. Reference is hereby made to the Supplemental Indenture for a statement of the respective rights, limitations of rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders.
| 15. | RANKING |
The Notes shall be direct, unsecured obligations of the Company and shall rank pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Company. The Guarantees shall be direct, unsecured obligations of the Guarantors and shall rank pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Guarantors.
| 16. | AUTHENTICATION |
This Note shall not be valid until an authorized officer of the Trustee signs the Trustee’s Certificate of Authentication set forth in this Note by manual or electronic signature.
| 17. | ABBREVIATIONS |
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TENANT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
| 18. | GOVERNING LAW |
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE, THE SUPPLEMENTAL INDENTURE AND THIS NOTE.
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| 19. | CHANGE OF CONTROL |
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem those Notes by notifying the Holders to that effect as described above, the Company shall make an offer (a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part of that Holder’s Notes on the terms set forth below; provided, that, the Notes shall be repurchased in multiples of $1,000 and if any Holder elects to have less than all of its Notes repurchased by the Company, the unpurchased portion of the Notes shall be equal to $2,000 or an integral multiple of $1,000 in excess thereof. In a Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of repurchase (a “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall send a notice to Holders, describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date that notice is sent, other than as may be required by law (a “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date.
On each Change of Control Payment Date, the Company shall, to the extent lawful, accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer, deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered, and deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased and that all conditions precedent provided for in the Indenture to the Change of Control Offer and to the repurchase by the Company of Notes pursuant to the Change of Control Offer have been complied with.
The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all Notes properly tendered in response to its offer and not withdrawn.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions herein, the Company will comply with those securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Offer provisions herein and in the Indenture by virtue of any such conflict.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below and have your signature guaranteed:
| I or we assign and transfer this Note to: |
||
| (Print or type name, address and zip code and social security or tax ID number of assignee) | ||
and irrevocably appoint, agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Dated: |
Signed: | |||||||
| (Sign exactly as your name appears on the other side of this Note) | ||||||||
Signature Guarantee: ___________________________
Signature must be guaranteed by an “eligible guarantor institution,” that is, a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
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EXHIBIT B
FORM OF GUARANTEE
GUARANTEE
For value received, each of the Persons named in Schedule I hereto (collectively, the “Guarantors”) hereby unconditionally guarantees, as principal obligor and not only as a surety, to the Holders of the 5.950% Senior Notes due 2032 (the “Notes”) of Lennar Corporation, a Delaware corporation (the “Company”), the cash payments in United States Dollars of any amounts due with respect to the Notes in the amounts and at the times when due and interest on all overdue amounts, to the extent lawful, and the payment or performance of all other obligations of the Company under the Indenture (as defined below) or the Notes, to the Holders and the Trustee (as defined below), all in accordance with and subject to the terms and limitations of the Notes, Article Eight of the Supplemental Indenture (as defined below) and this Guarantee. The validity and enforceability of this Guarantee shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture, dated as of December 31, 1997 (as amended from time to time, the “Base Indenture”), between the Company and The Bank of New York Mellon, as successor trustee (the “Trustee”), as amended and supplemented by the Seventeenth Supplemental Indenture, dated as of October 15, 2026, among the Company, the Guarantors named therein and the Trustee (as amended or supplemented from time to time, the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
The obligations of each of the Guarantors to the Holders of Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article Eight of the Supplemental Indenture and reference is hereby made to the Indenture for the precise terms of this Guarantee and all of the other provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS GUARANTEE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS RULES THAT WOULD APPLY THE LAWS OF ANY OTHER JURISDICTION. Each of the Guarantors hereto agrees to submit to the jurisdiction of the courts of the State of New York sitting in the County of New York, or of the United States of America for the Southern District 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 Supplemental Indenture.
The undersigned acknowledge that this Guarantee is subject to the TIA and each of the undersigned agrees to discharge its duties under the TIA.
B-1
IN WITNESS WHEREOF, each of the Guarantors listed on Schedule I hereto has caused this Guarantee to be duly executed.
Dated: _______________________
| Authorized signatory for each of the Guarantors listed on Schedule I hereto | ||
| By: |
| |
| Name: | ||
| Title: | ||
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SCHEDULE I
GUARANTORS
Greystone Nevada, LLC
Lennar Arizona, LLC
Lennar Carolinas, LLC
Lennar Colorado, LLC
Lennar Homes, LLC
Lennar Homes of Alabama, LLC
Lennar Homes of California, LLC
Lennar Homes of Indiana, LLC
Lennar Homes of Oklahoma, LLC
Lennar Homes of Tennessee, LLC
Lennar Homes of Texas Land and Construction, Ltd.
Lennar Northwest, LLC
Lennar Reno, LLC
Lennar Georgia, LLC
TI Lot 8, LLC
U.S. Home, LLC
I-1
Exhibit 5.1
CLEARY GOTTLIEB STEEN & HAMILTON LLP
| AMERICAS | One Liberty Plaza | EUROPE & MIDDLE EAST | ||
| NEW YORK | New York, NY 10006-1470 | ABU DHABI | ||
| SAN FRANCISCO | T: +1 212 225 2000 | BRUSSELS | ||
| SÃO PAULO | F: +1 212 225 3999 | COLOGNE | ||
| SILICON VALLEY | LONDON | |||
| WASHINGTON, D.C. | MILAN | |||
| PARIS | ||||
| ASIA | ROME | |||
| HONG KONG | ||||
| SEOUL | ||||
| D: +1 212 225 2130 | ||||
| E-Mail: ltsu@cgsh.com |
October 15, 2026
Lennar Corporation
5505 Waterford District Drive
Miami, Florida 33126
Ladies and Gentlemen:
We have acted as special counsel to Lennar Corporation, a Delaware corporation (the “Company”), and as special counsel to the Guarantors (as defined below) in connection with its offering pursuant to a registration statement on Form S-3 (No. 333-294985), as amended as of its most recent effective date (October 13, 2026), insofar as it relates to the Securities (as defined below) (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”)) (as so amended, including the documents incorporated by reference therein but excluding Exhibit 25, the “Registration Statement”), and the prospectus dated April 10, 2026 (the “Base Prospectus”), as supplemented by the prospectus supplement thereto dated October 13, 2026 (the “Prospectus Supplement,” and together with the Base Prospectus, the “Prospectus”), of (i) $300,000,000 aggregate principal amount of its 5.700% Senior Notes due 2029 (the “2029 Notes”) and (ii) $300,000,000 aggregate principal amount of its 5.950% Senior Notes due 2032 (the “2032 Notes” and together with the 2029 Notes, the “Notes”). Each series of Notes is fully and unconditionally guaranteed by the Guarantors (the “Guarantees” and, together with the Notes, the “Securities”). The Securities were issued under an indenture dated as of December 31, 1997 (the “Base Indenture”), as supplemented by the Sixteenth Supplemental Indenture, dated as of October 15, 2026, relating to the 2029 Notes (the “Sixteenth Supplemental Indenture”) and by the Seventeenth Supplemental Indenture, dated as of October 15, 2026, relating to the 2032 Notes (the “Seventeenth Supplemental Indenture” and, together with the Sixteenth Supplemental Indenture, the “Supplemental Indentures” and each, a “Supplemental Indenture”; and the Base Indenture, as supplemented by the Supplemental Indentures, the “Indenture”), among the Company, the Guarantors named in Schedule I to the Supplemental Indentures (the “Guarantors”) and The Bank of New York Mellon, as trustee (the “Trustee”).
In arriving at the opinion expressed below, we have reviewed the following documents:
| (a) | the Registration Statement; |
Lennar Corporation, p. 2
| (b) | the Prospectus; |
| (c) | an executed copy of the Underwriting Agreement dated October 13, 2026 between the Company and the several underwriters named in Schedule I thereto; |
| (d) | a copy of the Base Indenture and executed copies of each Supplemental Indenture, including the Guarantees set forth in each Supplemental Indenture; |
| (e) | copies of the Notes in global form as executed by the Company and authenticated by the Trustee; |
| (f) | executed copies of the Guarantee Agreements, dated as of the date hereof (the “Guarantee Agreements”); |
| (g) | copies of the Company’s (i) Restated Certificate of Incorporation and Certificate of Amendment to the Restated Certificate of Incorporation and (ii) Bylaws, certified by the Secretary of State of the State of Delaware and the corporate secretary of the Company, as applicable; and |
| (h) | copies of the (i) Certificate of Conversion, Certificate of Formation or Certificate of Amendment, as applicable, and (ii) By-Laws, Operating Agreement or Limited Liability Company Agreement, as applicable, of certain Guarantors organized under the laws of the State of Delaware (the “Delaware Guarantors”), certified by the Secretary of State of the State of Delaware and the corporate secretary of the Delaware Guarantors, respectively. |
In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and the Delaware Guarantors and such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinion expressed below.
In rendering the opinion expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that the Securities are the valid, binding and enforceable obligations of the Company and the Guarantors, entitled to the benefits of the Indenture and the Guarantee Agreements.
Lennar Corporation, p. 3
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Company and the Guarantors, (a) we have assumed that the Company, the Guarantors and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Company and the Delaware Guarantors regarding matters of the federal law of the United States of America, the law of the State of New York, the General Corporation Law of the State of Delaware or the Delaware Limited Liability Company Act that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) we express no opinion with respect to the effect of any mandatory choice of law rules and (c) such opinion is subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.
The foregoing opinions are limited to the federal law of the United States of America, the law of the State of New York, the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act.
We hereby consent to the use of our name in the Prospectus Supplement under the heading “Legal Matters”, as counsel for the Company that has passed on the validity of the Securities and to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated October 15, 2026. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
The opinion expressed herein is rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinion expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By: | /s/ Lillian Tsu | |
| Lillian Tsu, a Partner | ||