-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, N5xH2PvpmkHyZ6c8UVDBOZUDRInTHyMgpTFXw23m5uxi5s9kTnEdVQyJd9hE4WMx uFTJbsqDTh3al1qAsE1HHg== 0000950170-95-000009.txt : 19950601 0000950170-95-000009.hdr.sgml : 19950601 ACCESSION NUMBER: 0000950170-95-000009 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19941130 FILED AS OF DATE: 19950228 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: LENNAR CORP CENTRAL INDEX KEY: 0000058696 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 591281887 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-06643 FILM NUMBER: 95517092 BUSINESS ADDRESS: STREET 1: 700 NW 107TH AVE CITY: MIAMI STATE: FL ZIP: 33172 BUSINESS PHONE: 3055594000 10-K 1 LENNAR CORPORATION 10K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED) For the fiscal year ended November 30, 1994 Commission file number 1-6643 LENNAR CORPORATION (Exact name of registrant as specified in its charter) Delaware 59-1281887 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 700 Northwest 107th Avenue, Miami, Florida 33172 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (305) 559-4000 Securities registered pursuant to Section 12(b) of the Act: Name of each exchange Title of each class on which registered Common Stock, par value 10 cents New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES [X] NO [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. YES [X] NO [ ] As of February 6, 1995, registrant had outstanding 25,796,865 shares of common stock and 9,986,631 shares of Class B common stock (which can be converted into common stock). Of the total shares outstanding 25,341,078 shares of common stock and 40,501 shares of Class B common stock, having a combined aggregate market value (assuming the Class B shares were converted) on that date of $428,314,146, were held by non-affiliates of the registrant. Documents incorporated by reference: Related Section Documents --------------------------------------------------------------------------- II Pages 12 through 34 of the Annual Report to Stockholders for the year ended November 30, 1994. III Definitive Proxy Statement to be filed pursuant to Regulation 14 A on or before March 30, 1995. PART I ITEM 1. BUSINESS (a) General Development of Business. Lennar Corporation (together with its subsidiaries, the "Company") is a full service real estate company. The Company's operations include homebuilding, real estate investment and financial services. The Company's homebuilding operations include the construction and sale of homes, as well as the purchase, development and sale of residential land. The Investment Division is involved in the development, management and leasing, as well as the acquisition and sale, of commercial real estate and other real estate related assets. The financial services operations consist of mortgage loan servicing and origination, closing and title services and investments in rated commercial real estate mortgage-backed securities. In 1992, the Company, through its Investment Division, began acquiring portfolios of commercial real estate assets, including real estate related loans, which it believed it could liquidate at a profit. The Company had entered into a total of six partnerships as of November 30, 1994, all of which have been formed to acquire and manage a portfolio of assets. The six partnerships include four new partnerships which were formed during 1994. Shortly after the end of the 1994 fiscal year, the Company formed a seventh partnership which consisted primarily of assets located in California and consequently opened an Investment Division office in Los Angeles. The Company shares in the profits and losses of the partnerships and also receives fees for the management and disposition of the partnerships' assets. The Company has also been active in acquiring additional commercial real estate assets for its own account during the past several years. During 1994, the Company also began acquiring, at a discount, portions of commercial real estate mortgage-backed securities. The Company's Investment Division invests in the unrated portions of these securities and the Financial Services Division invests in rated portions. The Company's Investment Division partnerships also retain portions of these securities when they are the issuer of the securities. The Company's Investment Division is the special servicer on behalf of all the certificate holders (the majority of which are not Lennar entities) of the commercial mortgage-backed securities which are held by the Company and its partnerships. Since 1991 the Company has expanded its homebuilding operations by entering the following new markets: Dallas, Texas in 1991; Houston, Texas and Port St. Lucie, Florida in 1992 and Sarasota, Florida in 1994. (b) Financial Information about Industry Segments. The Company operates principally in three industry segments - homebuilding, real estate investment and financial services. The financial information related to these industry segments is contained in the financial statements incorporated by reference to pages 19 through 33 of the Company's 1994 Annual Report to Stockholders. (c) Narrative Description of Business. HOMEBUILDING The Company and its predecessor have been building homes since 1954. The Company believes that, since its acquisition of Development Corporation of America in 1986, it has each year delivered more homes in Florida than any other homebuilder. The Company has been building homes in Arizona since 1972, where it currently is one of the leading homebuilders. In 1991, the Company began building homes in the Dallas/Fort Worth area of 1 Texas, in 1992 it started homebuilding operations in Houston, Texas and Port St. Lucie, Florida and in late 1994 the Company began homebuilding operations in Sarasota, Florida. The Company has constructed and sold over 100,000 homes to date. The Company's homebuilding activities in Florida are principally conducted through Lennar Homes, Inc. In Arizona and Texas, they are conducted through Lennar Homes of Arizona, Inc. and Lennar Homes of Texas, Inc., respectively. The Company is involved in all phases of planning and building in its residential communities, including land acquisition, site planning, preparation of land, improvement of undeveloped and partially developed acreage, and design, construction and marketing of homes. The Company subcontracts virtually all segments of development and construction to others. The Company sells single-family attached and detached homes and condominiums in buildings generally one to five stories in height. Homes sold by the Company are primarily in the moderate price range for the areas in which they are located. They are targeted primarily at first time homebuyers, move-up homebuyers and, in some communities, retirees. The average sales price of a Lennar home was $126,200 in fiscal 1994. CURRENT HOMEBUILDING ACTIVITIES The table on the following page summarizes information about the Company's recent homebuilding activities: 2 LENNAR CORPORATION AND CONSOLIDATED SUBSIDIARIES Real Estate Activities
NOVEMBER 30, 1994 ----------------------------------------------------------------------------- HOMES DELIVERED ESTIMATED NUMBER IN YEARS ENDED HOMES COMPLETED OR UNDER CONSTRUCTION OF HOMES THAT COULD NOVEMBER 30, ------------------------------------- SOLD HOMES BE CONSTRUCTED ON --------------------- AVAILABLE FOR NOT YET LAND CURRENTLY REGION AND TYPE OF PRODUCTS 1994 1993 1992 SOLD (1) SALE STARTED (1) OWNED (2) (3) (4) - --------------------------- ----- ----- ----- -------- ------------- ----------- ------------------- Florida Single-Family Detached 2,471 2,145 1,520 586 342 425 16,720 Single-Family Attached 426 796 317 131 102 31 3,040 Multifamily 820 772 444 107 145 42 6,460 Arizona Single-Family Detached 586 596 525 163 63 60 1,950 Single-Family Attached 46 11 -- 12 21 3 120 Multifamily -- -- 11 -- -- -- 40 Texas Single-Family Detached 616 304 140 116 174 27 2,830 Single-Family Attached -- -- -- -- -- -- -- Multifamily -- -- -- -- -- -- -- ----- ----- ----- ----- ----- ----- ------ Totals 4,965 4,624 2,957 1,115 847 588 31,160 ===== ===== ===== ===== ===== ===== ====== Joint Ventures (Florida) -- 10 82 -- -- -- -- ===== ===== ===== ===== ===== ===== ====== Notes: (1) Although firm contracts relating to these homes were executed, there can be no assurance that purchasers will meet their obligations under the contracts. (2) Based on current management estimates, which are subject to change. (3) The Company owns additional property which it may in the future decide to develop or sell. (4) As of November 30, 1994, the Company had contracts or options to purchase approximately 8,100 additional homesites.
3 PROPERTY ACQUISITION The Company continuously considers the purchase of, and from time to time acquires, land for its development and sales programs. It generally does not acquire land for speculation. In some instances, the Company acquires land by acquiring options enabling it to purchase parcels as they are needed. Although some of the Company's land is held subject to purchase money mortgages or is mortgaged to secure $50 million of term loans, most of the Company's land (including most of the land on which it currently is building or expects to build during the next year) is not subject to mortgages. The Company believes its land inventory gives it a competitive advantage, particularly in Florida. CONSTRUCTION AND DEVELOPMENT The Company supervises and controls the development and building of its own residential communities. It employs subcontractors for site improvements and virtually all of the work involved in the construction of homes. In almost all instances, the arrangements between the Company and the subcontractors commit the subcontractors to complete specified work in accordance with written price schedules. These price schedules normally change to meet changes in labor and material costs. The Company does not own heavy construction equipment and generally has only a small labor force used to supervise development and construction and perform routine maintenance and minor amounts of other work. The Company generally finances construction with its own funds or borrowings under its unsecured working capital lines, not with secured construction loans. MARKETING The Company always has an inventory of homes under construction. A majority of these homes are sold (i.e., the Company has received executed sales contracts and deposits) before the Company starts construction. The Company employs sales associates who are paid salaries, commissions or both to make onsite sales of the Company's homes. The Company also sells through independent brokers. The Company advertises its residential communities through local media and sells primarily from models that it has designed and constructed. In addition, the Company advertises its retirement communities in areas in which potential retirees live. MORTGAGE FINANCING The Company's financial services subsidiaries make conventional, FHA-insured and VA-guaranteed mortgage loans available to qualified purchasers of the Company's homes. Because of the availability of mortgage loans from the Company's financial services subsidiaries, as well as independent mortgage lenders, the Company believes access to financing has not been, and is not, a significant problem for most purchasers of the Company's homes. COMPETITION The housing industry is highly competitive. In its activities, the Company competes with other developers and builders in and near the areas where the Company's communities are located, including a number of homebuilders with nationwide operations. The Company has for the past 25 years been one of the largest homebuilders in South Florida and for the past several years has delivered more homes in the State of Florida 4 than any other homebuilder. Further, the Company is a leading homebuilder in Arizona and is increasing its market position in the Dallas and Houston, Texas areas. Nonetheless, the Company is subject to intense competition from a large number of homebuilders in all of its market areas. INVESTMENT The Company has been engaged for more than 20 years in developing and managing commercial and residential income-producing properties. Currently, through its Investment Division, the Company owns and manages more than 2,800 rental apartment units (which are approximately 90% occupied) and more than 2.3 million square feet of low rise office buildings, warehouses and neighborhood retail centers (which are approximately 89% occupied), as well as a 297 room hotel, a mobile home park, and golf and other recreational facilities in various communities. At times, when properties reach what the Company believes to be optimum value, the Company sells them. Since 1992, the Investment Division has been acquiring, by itself and through partnerships, portfolios of real estate assets which it believes it can liquidate at a profit and from which it can generate rental, interest and other income during the several year liquidation process. By November 30, 1994, the Investment Division had entered into six partnerships. The Company's equity interests in these partnerships range from 9.9% to 50%. In addition to the Company's participating in the partnerships' purchases of portfolios of real estate assets, the Investment Division oversees the management of those portfolios, for which it receives management fees. A portfolio may consist of a combination of performing loans, non-performing loans and real estate. With regard to performing loans, either principal and interest payments are collected until the loans are paid in full, or the loans are used as collateral for non- recourse debt (which has the effect of accelerating the partnerships' cash realization). With regard to non-performing loans, the partnerships attempt to renegotiate the terms with the borrowers or they pursue other remedies, depending on the circumstances. These loans either become performing, are paid off, or the partnerships become the owners of the underlying real estate. This real estate is then managed and value enhanced until it can be sold. In several instances, loans held by partnerships have been sold to pools, which have obtained funding by issuing rated and unrated securities entitling the holders to the future proceeds of the loans. Often, the partnerships retain the unrated portions of the securities issued. During 1994, the Investment Division began acquiring, at substantial discounts from their face amounts, unrated portions of commercial real estate debt securities issued by others. The Investment Division is the special servicer on behalf of all certificate holders of these securities, both those issued by the partnerships and by others. The principal business of the special servicer is the management of real estate loans requiring attention. FINANCIAL SERVICES The Company's financial services subsidiaries originate mortgage loans, service mortgage loans which they and other lenders originate, purchase and re-sell mortgage loan pools, arrange title insurance and provide closing services for homebuyers. MORTGAGE ORIGINATION Through two of the financial services subsidiaries, Universal American Mortgage Company and AmeriStar Financial Services, Inc., the Company provides conventional, FHA-insured and VA-guaranteed mortgage loans to buyers of the Company's homes and others from offices located in Florida, California, Arizona, Texas, North Carolina and Maryland. In 1994, loans to buyers of the Company's homes represented approximately 15% of the Company's $941 million of loan originations. 5 The Company sells the loans it originates in the secondary mortgage market, generally on a non-recourse basis, but usually retains the servicing rights. The Company has an interest rate risk management policy under which it hedges its interest rate locked loan commitments and loans held for sale against exposure to market interest rate fluctuations. The Company finances its loans held for sale with borrowings under the financial services subsidiaries' $80 million lines of credit (secured by the loans and by certain servicing rights) or from Lennar Corporation when, on a consolidated basis, this minimized the overall cost of funds. MORTGAGE SERVICING The Company obtains significant earnings from servicing loans originated or acquired by its financial services subsidiaries. The Company services loans for the Government National Mortgage Association (Ginnie Mae), the Federal National Mortgage Association (Fanny Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac) and other mortgage investors. At November 30, 1994, it had a servicing portfolio of approximately 45,200 loans with an unpaid principal balance of approximately $3.4 billion. Revenues from servicing mortgage loans include servicing fees, late charges and other ancillary fees and all, or in some states, part of the interest on sums held in escrow for tax, insurance and other payments. However, proposed Federal legislation, if enacted, would establish uniform regulations regarding payment of interest on escrow accounts and otherwise regulate escrow accounts in ways which would reduce the benefit a mortgage servicer derives from those accounts. MORTGAGE ASSET ACQUISITION AND DISPOSITION The Company, from time to time, purchases pools of mortgage loans originated by financial institutions and then re-sells the loans in the secondary market. The benefits to the Company from these transactions include gains from the sales of the loans and retention of the right to service the loans after they are sold in the secondary market. In addition, during 1994, the Financial Services Division expanded its investment activities by acquiring rated portions of commercial mortgage-backed securities for which Lennar's Investment Division is the special servicer. INSURANCE AND CLOSING SERVICES The Company arranges title insurance for, and provides closing services to, buyers of the Company's homes and others in Florida. It provided these services in connection with approximately 4,800 real estate transactions during 1994. In addition, during 1994 the Company formed TitleAmerica Insurance Corporation, a title insurance underwriter, which provides title insurance to buyers of the Company's homes and others. 6 OTHER ACTIVITIES Lennar has a number of limited-purpose finance subsidiaries which have placed mortgages and other receivables as collateral for various long-term financings. These subsidiaries pay the debt service on the long-term borrowings primarily from the cash flows generated by the related pledged collateral. The Company believes that the cash flows generated by these subsidiaries will be adequate to meet the required debt payment schedules. REGULATION Homes and residential communities built by the Company must comply with state and local regulations relating to, among other things, zoning, treatment of waste, construction materials which must be used, certain aspects of building design and minimum elevation of properties and other local ordinances. These include laws in Florida and other states requiring use of construction materials which reduce the need for energy-consuming heating and cooling systems. The State of Florida has also adopted a law which requires that commitments to provide roads and other offsite infrastructure be in place prior to the commencement of new construction. The provisions of this law are currently being implemented and administered by individual counties and municipalities throughout the state and may result in additional fees and assessments or building moratoriums It is difficult to predict the impact of this law on future operations, or what changes may take place in the law in the future. However, the Company believes that most of its Florida land presently meets the criteria under the law, and it has the financial resources to provide for development of the balance of its land in compliance with the law. As a result of Hurricane Andrew in 1992, there have been changes to various building codes within Florida. These changes have resulted in higher construction costs. To date, these additional costs have been recoverable through increased selling prices without any apparent significant adverse effect on sales volume. Virtually all areas of the United States have adopted regulations intended to assure that construction and other activities will not have an adverse effect on local ecology and other environmental conditions. These regulations have had an effect on the manner in which the Company has developed certain properties and may have a continuing influence on the Company's development activities in the future. In order to make it possible for purchasers of some of the Company's homes to obtain FHA-insured or VA-guaranteed mortgages, the Company must construct those homes in compliance with regulations promulgated by those agencies. The Company has registered condominium communities with the appropriate authorities in Florida. It has registered some of its Florida communities with authorities in New Jersey and New York. Sales in other states would require compliance with laws in those states regarding sales of condominium homes. The Company's title insurance agency subsidiary must comply with the applicable insurance laws and regulations. The Company's subsidiary which underwrites title insurance is licensed in the State of Florida, and must comply with Florida laws and regulations regarding title insurance companies. These laws and regulations include provisions regarding capitalization, investments, forms of policies and premiums. EMPLOYEES At November 30, 1994, the Company employed 1,575 individuals, of whom 419 were management, supervisory and other professional personnel, 166 were construction supervisory personnel, 273 were real estate salespersons, 140 were hospitality personnel and 577 were professional support personnel, accounting, office clerical and skilled workers. 7 Some of the subcontractors utilized by the Company may employ members of labor unions. The Company does not have collective bargaining agreements relating to its employees. ITEM 2. PROPERTIES. For information about properties owned by the Company for use in its residential and commercial activities, see Item 1. The Company maintains its executive offices, financial services subsidiary headquarters, Investment Division headquarters, Dade County Homebuilding Division offices and Dade County mortgage and title company branch offices at 700 and 730 Northwest 107th Avenue, Miami, Florida in office buildings built and owned by the Company. These offices occupy approximately 60,000 square feet. Other Company offices are located in Company-owned communities or retail centers, or in leased space. ITEM 3. LEGAL PROCEEDINGS. The Company is a defendant in various lawsuits brought by condominium and homeowner associations in communities constructed by the Company. Although the specific allegations in the lawsuits differ, in general, each of the lawsuits asserts that the Company failed to construct buildings in the community involved in accordance with plans and specifications and applicable construction codes, and each of them seeks reimbursement for sums the plaintiff association claims it will have to spend to remedy the alleged construction deficiencies. Associations in other communities have threatened similar suits. The Company views suits of this type as a normal incident to the business of building homes. The Company does not believe that these lawsuits or threatened lawsuits will have a material effect upon the Company. During 1993 and 1994, the Company settled two lawsuits and a number of claims in which owners of approximately 675 homes built by the Company sought damages as a result of Hurricane Andrew. Other homeowners or homeowners' insurers are not precluded from making similar claims against the Company. Five insurance companies have contacted the Company seeking reimbursement for sums paid by them with regard to homes built by the Company and damaged by the storm. The Company has settled all outstanding claims with four of these insurance companies which represented the majority of the claims made. In addition to the claims, there are three pending lawsuits in which homeowners or homeowners' insurers seek damages. Other claims of this type may be asserted. The Company's insurers have asserted that their policies cover some, but not all aspects of these claims. However, to date, the Company's insurers have made all payments required under settlements. Even if the Company were required to make any payments with regard to Hurricane Andrew related claims, the Company believes that the amount it would pay would not be material to its results of operations or financial position. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS. No matters were submitted to a vote of security holders during the fourth quarter of fiscal 1994. 8 PART II ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED SECURITY HOLDER MATTERS. Information concerning the market data for the Company's common stock and related security holder matters is incorporated by reference to page 34 of the Company's 1994 Annual Report to Stockholders. ITEM 6. SELECTED FINANCIAL DATA. Selected Financial Data is incorporated by reference to page 13 of the Company's 1994 Annual Report to Stockholders. ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. Management's discussion and analysis of financial condition and results of operations is incorporated by reference to pages 14 through 18 of the Company's 1994 Annual Report to Stockholders. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA. Consolidated financial statements and supplementary data about the Company are incorporated by reference to pages 19 through 33 of the Company's 1994 Annual Report to Stockholders. ITEM 9. CHANGES IN AND DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. On April 5, 1994, the Company's Board of Directors, acting on the recommendation of the Audit Committee, approved the retention of Deloitte & Touche to audit the Company's financial statements at November 30, 1994 and for the year ending on that date. KPMG Peat Marwick audited the Company's financial statements for the year ended November 30, 1993 and for a number of years before that. The decision to replace KPMG Peat Marwick with Deloitte & Touche was based solely on cost considerations. Early in fiscal 1994, the Company invited KPMG Peat Marwick and three other firms it considered to be qualified to submit proposals for the audit of the Company's financial statements for the five fiscal years ending November 30, 1994 through 1998. Upon review of the proposals, the Company selected Deloitte & Touche, because it submitted the lowest cost proposal. Neither KPMG Peat Marwick's report on the financial statements of the Company and its subsidiary for the fiscal year ended November 30, 1993, nor its report on the financial statements for the year ended November 30, 1992, contained an adverse opinion or a disclaimer of an opinion, or was qualified or modified as to uncertainty, audit scope or accounting principles. Neither in connection with the audits by KPMG Peat Marwick of the financial statements for those years, nor during any subsequent interim period, were there disagreements on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of KPMG Peat Marwick, would have caused it to make reference to the subject matter of the disagreements in connection with its reports. Deloitte & Touche has, for a number of years, assisted the Company in the preparation of tax returns and with regard to other tax related matters. The Company did not during the Company's two most recent fiscal years, or during any subsequent interim period, consult Deloitte & Touche regarding either (i) the application of accounting principles to a specific transaction or the type of audit opinion that might be rendered on the Company's financial statements on which Deloitte & Touche provided a written report or written or oral advice which Deloitte & Touche concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting issue, or (ii) any matter that was the subject of a disagreement or an event of the type described in Item 304 (a) (l) (v) of Regulation S-K. 9 PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT. Information about the Company's directors is incorporated by reference to the Company's definitive proxy statement, which will be filed with the Securities and Exchange Commission not later than March 30, 1995 (120 days after the end of the Company's fiscal year). The following people were the executive officers of Lennar Corporation on February 6, 1995:
Name/Position Age Year of Election ------------- --- ---------------- Leonard Miller, Chairman of the Board and President 62 1969 Robert B. Cole, Secretary 84 1969 Irving Bolotin, Senior Vice President 62 1969 Allan J. Pekor, Financial Vice President 58 1979 Sherman J. Kronick, Vice President 68 1979 Marshall H. Ames, Vice President 51 1982 Stuart A. Miller, Vice President 37 1985 Jeffrey P. Krasnoff, Vice President 39 1986 Jonathan M. Jaffe Vice President 35 1994 M. Eugene Saleda, Treasurer 59 1977 James T. Timmons, Controller 29 1993 Steven J. Saiontz, President, Lennar Financial Services, Inc. 36 1987
Mr. Leonard Miller has been the Chief Executive Officer and a director of the Company since it was founded. Mr. Cole was, until December 1983, a member of Mershon, Sawyer, Johnston, Dunwody & Cole, a firm of attorneys in Miami, Florida. Since then he has been of counsel to that firm and has been a consultant to the Company on business and legal affairs, as well as Chairman of the Company's Executive Committee and the Company's Secretary and General Counsel. Messrs. Bolotin, Pekor, Kronick, Ames, Krasnoff and Saleda have each held substantially their present positions with the Company for more than five years. Mr. Stuart Miller (who is the son of Leonard Miller) and Mr. Jaffe have held various executive positions with the Company for more than five years. Mr. Stuart Miller has been a Vice President since 1985, and currently heads the Company's Homebuilding and Investment Divisions. Mr. Jaffe has been a Vice President since 1994 and currently heads the Company's South Florida homebuilding region. 10 Mr. Timmons has been employed by the Company since 1992. He became its controller in 1993. Prior to joining the Company Mr. Timmons was employed as a Financial Auditor with Burger King Corporation and, before that, was employed by KPMG Peat Marwick. Mr. Saiontz (who is the son-in-law of Leonard Miller) has held substantially the same position with the Company for more than five years. ITEM 11. EXECUTIVE COMPENSATION. The information called for by this item is incorporated by reference to the Company's definitive proxy statement, which will be filed with the Securities and Exchange Commission not later than March 30, 1995 (120 days after the end of the Company's fiscal year). ITEM 12. SECURITY HOLDINGS OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT. The information called for by this item is incorporated by reference to the Company's definitive proxy statement, which will be filed with the Securities and Exchange Commission not later than March 30, 1995 (120 days after the end of the Company's fiscal year). ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS. The information called for by this item is incorporated by reference to the Company's definitive proxy statement, which will be filed with the Securities and Exchange Commission not later than March 30, 1995 (120 days after the end of the Company's fiscal year). 11 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K. (a) Documents filed as part of this Report. 1. The following financial statements are incorporated by reference in Item 8: Page in 1994 Annual Financial Statement Report to Stockholders ------------------- ---------------------- Independent Auditors' Report 12 Consolidated Balance Sheets as of November 30, 1994 and 1993 19 Consolidated Statements of Earnings for the years ended November 30, 1994, 1993 and 1992 20 Consolidated Statements of Cash Flows for the years ended November 30, 1994, 1993 and 1992 21 Consolidated Statements of Stockholders' Equity for the years ended November 30, 1994, 1993 and 1992 22 Notes to Consolidated Financial Statements 23-33 2. Predecessor Independent Auditors' Report on the financial statements and financial statement schedules is included in this report on page 17. 3. The following financial statement schedules are included in this Report: Financial Statement Schedule Page in This Report ---------------------------- ------------------- Independent Auditors' Report on Schedules 16 VIII - Valuation and Qualifying Accounts 18 XI - Real Estate and Accumulated Depreciation 19 XII - Mortgage Loans on Real Estate 20 Information required by other schedules has either been incorporated in the financial statements and accompanying notes, or is not applicable to the Company. 12 3. The following exhibits are filed with this Report or incorporated by reference: 3(a). Certificate of Incorporation - Incorporated by reference to Registration Statement No. 2-36239 and definitive proxy statements dated February 29, 1980, February 28, 1985, March 24, 1987 and March 1, 1989. 3(b). Bylaws - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1989. 10(a). Revolving Credit Agreement dated December 11, 1991 between The First National Bank of Chicago, as agent, and Lennar Corporation and certain subsidiaries - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1991. 10(b). Lennar Corporation 1980 Stock Option Plan - Incorporated by reference to Registration Statement No. 2-73630. 10(c). Lennar Corporation 1991 Stock Option Plan - Incorporated by reference to Registration Statement No. 33-45442. 10(d). Lennar Corporation Employee Stock Ownership Plan and Trust - Incorporated by reference to Registration Statement No. 2-89104. 10(e). Amendment dated December 13, 1989 to Lennar Corporation Employee Stock Ownership Plan - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1990. 10(f). Lennar Corporation Employee Stock Ownership/401k Trust Agreement dated December 13, 1989 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1990. 10(g). Amendment dated April 18, 1990 to Lennar Corporation Employee Stock Ownership/401k Plan - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1990. 10(h). Term Loan Agreement between Lennar Corporation and NCNB National Bank of Florida dated April 14, 1988 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(i). Term Loan Agreement between Lennar Corporation and Sun Bank/Miami, National Association dated April 27, 1988 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(j). Term Loan Agreement between Lennar Corporation and The First National Bank of Chicago dated May 3, 1988 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 13 10(k). Commercial Mortgage Loan and Real Property Purchase Agreement (Pools 1 to 5) by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated May 7, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(l). Commercial Mortgage Loan and Real Property Purchase Agreement (Pool 6) by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated June 26, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(m). Commercial Business Loan Purchase Agreement (Pool 7) by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated June 26, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(n). Loan and Security Agreement by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated July 1, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(o). Revolving Credit Agreement dated July 29, 1993 between The First National Bank of Chicago, as agent, and Lennar Corporation and certain subsidiaries - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1993. 10(p). Revolving Credit Agreement dated July 29, 1994 between The First National Bank of Chicago, as agent, and Lennar Corporation and certain subsidiaries. 13. Pages 12-34 of the 1994 Annual Report to Stockholders. 21. List of subsidiaries. 23. Independent Auditors' Consents. 27. Financial Data Schedule. (b) Reports on Form 8-K filed during the quarter ended November 30, 1994. None. (c) The exhibits to this Report are listed in Item 14(a)3. (d) The financial statement schedules required by Regulation S-X which are excluded from the Annual Report to Stockholders by Rule 14a-3(b)(1) are listed in Item 14(a)2. 14 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized. LENNAR CORPORATION Leonard Miller /s/ Leonard Miller Chairman of the Board and President ------------------------- Date: February 27, 1995 Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Company and in the capacities and on the dates indicated: Principal Executive Officer: Leonard Miller /s/ Leonard Miller Chairman of the Board and President ------------------------- Date: February 27, 1995 Principal Financial Officer: Allan J. Pekor /s/ Allan J. Pekor Financial Vice President ------------------------- Date: February 27, 1995 Principal Accounting Officer: James T. Timmons /s/ James T. Timmons Controller ------------------------- Date: February 27, 1995 Directors: Charles I. Babcock, Jr. /s/ Charles I. Babcock, Jr. ------------------------- Date: February 20, 1995 Irving Bolotin /s/ Irving Bolotin ------------------------- Date: February 27, 1995 Robert B. Cole /s/ Robert B. Cole ------------------------- Date: February 27, 1995 Richard W. McEwen /s/ Richard W. WcEwen ------------------------- Date: February 20, 1995 James W. McLamore /s/ James W. McLamore ------------------------- Date: February 19, 1995 Stuart A. Miller /s/ Stuart A. Miller ------------------------- Date: February 27, 1995 Arnold P. Rosen /s/ Arnold P. Rosen ------------------------- Date: February 20, 1995 Steven J. Saiontz /s/ Steven J. Saiontz ------------------------- Date: February 27, 1995 15 Deloitte & Touche LLP Certified Public Accountants Suite 2500 100 Southeast Second Street Miami, Florida 33131-2135 Telephone: (305) 358-4141 Facsimile: (305) 372-3160 INDEPENDENT AUDITORS' REPORT To the Board of Directors and Stockholders of Lennar Corporation: We have audited the consolidated financial statements of Lennar Corporation as of November 30, 1994, and for the year then ended, and have issued our report thereon dated January 18, 1995; such financial statements and report are included in your 1994 Annual Report to Shareholders and are incorporated herein by reference. Our audit also included the financial statement schedules of Lennar Corporation, listed in Item 14 as of November 30, 1994 and for the year then ended. These financial statement schedules are the responsibility of the Corporation's management. Our responsibility is to express an opinion based on our audit. In our opinion, such financial statement schedules, when considered in relation to the basic financial statements taken as a whole, present fairly in all material respects the information set forth therein. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Miami, Florida January 18, 1995 16 KPMG Peat Marwick LLP One Biscayne Tower Telephone 305 358 2300 Telefax 305 577 0544 Suite 2900 2 South Biscayne Boulevard Miami, FL 33131 INDEPENDENT AUDITORS' REPORT The Board of Directors Lennar Corporation: We have audited the consolidated balance sheet of Lennar Corporation and subsidiaries as of November 30, 1993, and the related consolidated statements of earnings, cash flows and stockholders equity for each of the years in the two-year period ended November 30, 1993. These consolidated financial statements are incorporated by reference in the annual report on Form 10-K for the year 1994. In connection with our audits of the consolidated financial statements, we also have audited the financial statement schedules. These consolidated financial statements and financial related statement schedules are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedules based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Lennar Corporation and subsidiaries as of November 30, 1993, and the results of their operations and their cash flows for each of the years in the two-year period ended November 30, 1993, in conformity with generally accepted accounting principles. Also in our opinion, the related financial statement schedules, when considered in relation to the basic consolidated financial statements taken as a whole, present fairly, in all material respects, the information set forth therein. /s/ KPMG Peat Marwick LLP January 18, 1994 17 LENNAR CORPORATION AND CONSOLIDATED SUBSIDIARIES Schedule VIII Valuation and Qualifying Accounts Years ended November 30, 1994, 1993 and 1992
ADDITIONS ---------------------------- CHARGED CHARGED BEGINNING TO COSTS (CREDITED) TO ENDING DESCRIPTION BALANCE AND EXPENSES OTHER ACCOUNTS (DEDUCTIONS) BALANCE - --------------------------------------------------------- ------------ ------------ -------------- ------------ ---------- Year ended November 30, 1994 Allowances deducted from assets to which they apply: Allowances for doubtful accounts and notes receivable $ 1,323,000 1,091,000 (66,000) (820,000) 1,528,000 ============ ========= ========= ======== ========= Deferred income, unamortized discounts and other $ 1,261,000 -- 1,137,000 (A) (37,000) (B) 2,361,000 ============ ========= ========= ======== ========= Loan loss reserve $ 3,595,000 472,000 -- (533,000) 3,534,000 ============ ========= ========= ======== ========= Year ended November 30, 1993 Allowances deducted from assets to which they apply: Allowances for doubtful accounts and notes receivable $ 603,000 1,062,000 15,000 (357,000) 1,323,000 ============ ========= ========= ======== ========= Deferred income, unamortized discounts and other $ 1,688,000 -- (342,000) (85,000) (B) 1,261,000 ============ ========= ========= ======== ========= Loan loss reserve $ 151,000 416,000 3,717,000 (689,000) 3,595,000 ============ ========= ========= ======== ========= Loan loss reserve included in liabilities (C) $ 3,717,000 -- (3,717,000) -- -- ============ ========= ========= ======== ========= Year ended November 30, 1992 Allowances deducted from assets to which they apply: Allowances for doubtful accounts and notes receivable $ 726,000 201,000 66,000 (390,000) 603,000 ============ ========= ========= ======== ========= Deferred income, unamortized discounts and other $ 1,767,000 -- -- (79,000) (B) 1,688,000 ============ ========= ========= ======== ========= Loan loss reserve $ 105,000 -- 46,000 -- 151,000 ============ ========= ========= ======== ========= Loan loss reserve included in liabilities (C) $ 3,547,000 376,000 (46,000) (160,000) 3,717,000 ============ ========= ========= ======== ========= Notes: (A) Includes discounts on mortgages purchased. (B) Amortization of discounts and recognition of deferred income. (C) Loan loss reserves relating to loans serviced for others are included in liabilities in the balance sheet.
18 Schedule XI LENNAR CORPORATION AND CONSOLIDATED SUBSIDIARIES REAL ESTATE AND ACCUMULATED DEPRECIATION (D) YEAR ENDED NOVEMBER 30, 1994
COSTS CAPITALIZED INITIAL COST SUBSEQUENT TO GROSS AMOUNT AT WHICH TO COMPANY ACQUISITION CARRIED AT CLOSE OF PERIOD ----------------------- ----------------------- -------------------------------------- BUILDING AND CARRYING DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS COSTS LAND (A) BUILDINGS (A) TOTAL (C) - --------------------------- ------------ ---------- ------------ ------------ --------- ---------- ------------- ----------- Rental apartment property: Dade County, Florida $ 21,736,000 1,872,000 9,063,000 4,623,000 360,000 2,046,000 13,872,000 15,918,000 Rental office property: Dade County, Florida 17,731,000 1,779,000 -- 13,447,000 1,959,000 4,319,000 12,866,000 17,185,000 Hotel: Broward County, Florida -- 1,000,000 3,478,000 8,830,000 367,000 1,367,000 12,308,000 13,675,000 Rental apartment property: Dade County, Florida -- 3,526,000 9,999,000 -- -- 3,526,000 9,999,000 13,525,000 Rental office property: Orange County, California -- 3,839,000 15,356,000 -- -- 3,839,000 15,356,000 19,195,000 Shopping center: Maricopa County, Arizona -- 2,381,000 9,524,000 -- -- 2,381,000 9,524,000 11,905,000 Other miscellaneous properties which are individually less than 5% of total 33,991,000 35,655,000 63,153,000 23,242,000 2,403,000 39,164,000 85,289,000 124,453,000 ------------ ---------- ----------- ---------- --------- ---------- ----------- ----------- $ 73,458,000 50,052,000 110,573,000 50,142,000 5,089,000 56,642,000 159,214,000 215,856,000 ============ ========== =========== ========== ========= ========== =========== =========== DATE OF ACCUMULATED COMPLETION OF DATE DESCRIPTION DEPRECIATION (B) CONSTRUCTION ACQUIRED - --------------------------- ---------------- ------------- -------- Rental apartment property: Dade County, Florida 8,911,000 1979 1977 Rental office property: Dade County, Florida 2,033,000 Various 1980 Hotel: Broward County, Florida 2,122,000 Various 1987 Rental apartment property: Dade County, Florida 1,146,000 Various 1991 Rental office property: Orange County, California 33,000 1989 1994 Shopping center: Maricopa County, Arizona 20,000 1988 1994 Other miscellaneous properties which are individually less than 5% of total 12,158,000 Various Various ---------- 26,423,000 ========== Notes: (A) Includes related improvements and capitalized carrying costs. (B) Depreciation is calculated using the straight-line method over the estimated useful lives which vary from 15 to 40 years. (C) The aggregate cost of the listed property for Federal income tax purposes was $162,478,000 at November 30, 1994. (D) The listed real estate includes operating properties completed or under construction. Real estate inventories, held for resale in the ordinary course of business, have been excluded from the schedule. (E) Reference is made to notes 1, 10 and 11 of the consolidated financial statements. (F) The changes in the total cost of investment properties and accumulated depreciation for the years ended November 30, 1994, 1993 and 1992 are as follows (in thousands):
1994 1993 1992 -------- ------- ------- Cost: Balance at beginning of year $175,144 122,709 115,046 Additions, at cost 53,340 40,557 10,537 Accounting change 7,482 -- -- Acquisitions through foreclosure -- 14,410 -- Cost of real estate sold (11,802) -- (1,723) Transfers (8,308) (2,532) (1,151) -------- ------- ------- Balance at end of year $215,856 175,144 122,709 ======== ======= ======= Accumulated depreciation: Balance at beginning of year $ 22,508 19,834 17,018 Depreciation and amortization charged against earnings 4,338 3,639 3,138 Accounting change 165 -- -- Depreciation on real estate sold (351) -- (80) Depreciation on transfers (237) (965) (242) -------- ------- ------- Balance at end of year $ 26,423 22,508 19,834 ======== ======= =======
19 Schedule XII LENNAR CORPORATION AND CONSOLIDATED SUBSIDIARIES MORTGAGE LOANS ON REAL ESTATE NOVEMBER 30, 1994
PRINCIPAL AMOUNT OF LOANS FINAL PERIODIC CARRYING DELINQUENT THREE DESCRIPTION INTEREST RATE MATURITY DATE PAYMENT TERMS PRIOR LIENS FACE AMOUNT AMOUNT (A) MONTHS OR MORE - --------------------------- ------------- ------------- -------------- ----------- ----------- ---------- ---------------- Mortgage notes secured by real estate: Dade County, Florida 10.00% 1995 Single payment $ -- 4,732,000 3,652,000 -- Broward County, Florida 9.50% 1996 Level payment -- 1,915,000 1,915,000 -- Gwinnett County, Georgia 7.00% 1996 Level payment -- 1,746,000 1,572,000 -- San Bernardino County, Calif. 8.50% 1994 Level payment -- 1,707,000 1,555,000 -- Gwinnett County, Georgia 7.25% 1995 Single payment -- 4,800,000 4,365,000 -- Harris County, Texas 9.50% 1996 Single payment -- 3,704,000 3,046,000 -- Los Angeles County, Calif. 9.50% 1994 Single payment -- 708,000 595,000 595,000 Other 7.50-16.00% 1995-2022 Various -- 2,846,000 1,660,000 153,000 ---------- ---------- ---------- ------- $ -- 22,158,000 18,360,000 748,000 ========== ========== ========== ======= Notes: (A) For Federal income tax purposes, the aggregate basis of the listed mortgages was $16,715,000 at November 30, 1994. (B) This schedule does not include mortgages held by Lennar Financial Services, Inc. (C) The changes in the carrying amounts of mortgages for the years ended November 30, 1994, 1993, and 1992 are as follows (in thousands):
1994 1993 1992 -------- ------- ------ Balance at beginning of year $ 26,605 15,520 16,253 Additions (deductions): New mortgage loans, net 14,293 28,929 886 Collections of principal (12,454) (4,099) (1,088) Transfers to Lennar Financial Services, Inc. (11,151) -- -- Foreclosures -- (14,576) (854) Amortization of discount 31 40 40 Deferred income recognized 6 45 39 Other 1,030 746 244 -------- ------- ------ Balance at end of year $ 18,360 26,605 15,520 ======== ======= ======
20 EX-99 2 INDEX TO EXHIBITS LENNAR CORPORATION EXHIBITS TO FORM 10-K ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE ACT OF 1934 FISCAL YEAR ENDED NOVEMBER 30, 1994 INDEX TO EXHIBITS Exhibits 3(a). Certificate of Incorporation - Incorporated by reference to Registration Statement No. 2-36239 and definitive proxy statements dated February 29, 1980, February 28, 1985, March 24, 1987 and March 1, 1989. 3(b). Bylaws - Incorporated by reference to Annual Report on form 10-K for the year ended November 30, 1989. 10(a). Revolving Credit Agreement dated December 11, 1991 between The First National Bank of Chicago, as agent, and Lennar Corporation and certain subsidiaries - Incorporated by reference to Annual Report on form 10-K for the year ended November 30, 1991. 10(b). Lennar Corporation 1980 Stock Option Plan - Incorporated by reference to Registration Statement No. 2-73630. 10(c). Lennar Corporation 1991 Stock Option Plan - Incorporated by reference to Registration Statement No. 33-45442. 10(d). Lennar Corporation Employee Stock Ownership Plan and Trust - Incorporated by reference to Registration Statement No. 2-89104. 10(e). Amendment dated December 13, 1989 to Lennar Corporation Employees Stock Ownership Plan - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1990. 10(f). Lennar Corporation Employee Stock Ownership/401K Trust Agreement dated December 13, 1989 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1990. 10(g). Amendment dated April 18, 1990 to Lennar Corporation Employee Stock Ownership/401K Plan - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1990. 10(h). Term Loan Agreement between Lennar Corporation and NCNB National Bank of Florida dated April 14, 1988 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(i). Term Loan Agreement between Lennar Corporation and Sun Bank/Miami, National Association dated April 27, 1988 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(j). Term Loan Agreement between Lennar Corporation and The First National Bank of Chicago dated May 3, 1988 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. INDEX TO EXHIBITS (continued) 10(k). Commercial Mortgage Loan and Real Property Purchase Agreement (Pools 1 to 5) by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated May 7, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(l). Commercial Mortgage Loan and Real Property Purchase Agreement (Pool 6) by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated June 26, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(m). Commercial Business Loan Purchase Agreement (Pool 7) by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated June 26, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(n). Loan and Security Agreement by and among Resolution Trust Corporation and Lennar Florida Partners I, L.P. dated July 1, 1992 - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1992. 10(o). Revolving Credit Agreement dated July 29, 1993 between The First National Bank of Chicago, as agent, and Lennar Corporation and certain subsidiaries - Incorporated by reference to Annual Report on Form 10-K for the year ended November 30, 1993. 10(p). Revolving Credit Agreement dated July 29, 1994 between The First National Bank of Chicago, as agent, and Lennar Corporation and certain subsidiaries. 13. Pages 12 - 34 of the 1994 Annual Report to Stockholders 21. List of subsidiaries. 23. Independent Auditors' Consents. 27. Financial Data Schedule. EX-10.(P) 3 REVOLVING CREDIT AGREEMENT EXHIBIT 10(p) REVOLVING CREDIT AGREEMENT among LENNAR CORPORATION and CERTAIN SUBSIDIARIES and THE FIRST NATIONAL BANK OF CHICAGO, THE FIRST NATIONAL BANK OF BOSTON, BANK ONE, TEXAS, N.A., CREDIT LYONNAIS ATLANTA AGENCY, CREDIT LYONNAIS CAYMAN ISLAND BRANCH, INTERCONTINENTAL BANK, COMERICA BANK, NATIONSBANK OF FLORIDA, N.A. THE FUJI BANK, LIMITED, NEW YORK BRANCH, BARNETT BANK OF SOUTH FLORIDA, N.A., NBD BANK, N.A., CONTINENTAL BANK and THE FIRST NATIONAL BANK OF CHICAGO, As Agent Closing Date: July 29, 1994 TABLE OF CONTENTS ARTICLE I Certain Defined Terms 1 SECTION 1.01. Certain Defined Terms 1 SECTION 1.02. Computation of Time Periods 17 SECTION 1.03. Accounting Terms 18 ARTICLE II Amounts and Terms of the Advances 18 SECTION 2.01. Existing Loans; Loans Prior to the Termination Date; Maximum Credit Facilities 18 SECTION 2.02. Ratable Loans 18 SECTION 2.03. Types of Advances; Final Maturity 19 SECTION 2.04. Mandatory Principal Payments 19 SECTION 2.05. Optional Principal Payments 19 SECTION 2.06. Commitment Fee and Reduction of Commitments 19 SECTION 2.07. Extension of Termination Date; Extension Fee 20 SECTION 2.08. Method of Borrowing 21 SECTION 2.09. Method of Selecting Types and Interest Periods for Advances 21 SECTION 2.10. Method of Selecting Types and Interest Periods for Conversion and Continuation of Advances 22 SECTION 2.11. Minimum Amount of Each Advance 23 SECTION 2.12. Rate after Maturity 23 SECTION 2.13. Method of Payment 23 SECTION 2.14. Notes; Telephonic Notices 24 SECTION 2.15. Interest Payment Dates; Interest and Fee Basis 24 SECTION 2.16. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions 25 SECTION 2.17. Lending Installations 25 SECTION 2.18. Non-Receipt of Funds by the Agent 25 SECTION 2.19. Withholding Tax Exemption 26 SECTION 2.20. Unconditional Obligation to Make Payments 26 SECTION 2.22. Compensating Balances 27 ARTICLE III Change In Circumstances 28 SECTION 3.01. Yield-Protection 28 SECTION 3.02. Changes in Capital Adequacy Regulations 28 SECTION 3.03. Availability of Types of Advances 29 SECTION 3.04. Funding Indemnification 29 SECTION 3.05. Lender Statements: Survival of Indemnity 29
- (i) - ARTICLE IV Representations and Warranties 30 SECTION 4.01. Organization, Powers, etc. 30 SECTION 4.02. Authorization and Validity of this Agreement, etc. 30 SECTION 4.03. Financial Statements 31 SECTION 4.04. No Material Adverse Effect 31 SECTION 4.05. Title to Properties 31 SECTION 4.06. Litigation 32 SECTION 4.07. Payment of Taxes 32 SECTION 4.08. Agreements 33 SECTION 4.09. Foreign Direct Investment Regulations 33 SECTION 4.10. Federal Reserve Regulations 33 SECTION 4.11. Consents, etc. 34 SECTION 4.12. Compliance with Applicable Laws 34 SECTION 4.13. Relationship of the Borrower 34 SECTION 4.14. Subsidiaries; Joint Ventures 35 SECTION 4.15. ERISA 35 SECTION 4.16. Investment Company Act 35 SECTION 4.17. Public Utility Holding Company Act 36 SECTION 4.18. Subordinated Debt 36 SECTION 4.19. Post-Retirement Benefits 36 SECTION 4.20. Insurance 36 SECTION 4.21. Environmental Representations 36 ARTICLE V Conditions Precedent 37 SECTION 5.01. Conditions of Effectiveness 37 SECTION 5.02. Conditions Precedent to All Borrowings 40 ARTICLE VI Affirmative Covenants 41 SECTION 6.01. Existence, Properties, etc. 41 SECTION 6.02. Notice 41 SECTION 6.03. Payments of Debts, Taxes, etc. 41 SECTION 6.04. Accounts and Reports 42 SECTION 6.05. Access to Premises and Records 46 SECTION 6.06. Maintenance of Properties and Insurance 46 SECTION 6.07. Financing; New Investments 47 SECTION 6.08. Compliance with Applicable Laws 47 SECTION 6.09. Change in Collateral 47 SECTION 6.10. Advances to the Mortgage Banking Subsidiaries 47 SECTION 6.11. Use of Proceeds 48
- (ii) - ARTICLE VII Negative Covenants 48 SECTION 7.01. Tangible Net Worth 48 SECTION 7.02. Ratio of Liabilities to Tangible Net Worth 48 SECTION 7.03. Guaranties 49 SECTION 7.04. Sale of Assets; Acquisitions; Merger 49 SECTION 7.05. Investments 50 SECTION 7.06. Disposition, Encumbrance or Issuance of Certain Stock 51 SECTION 7.07. Subordinated Debt 51 SECTION 7.08. Housing Unit 51 SECTION 7.09. Construction in Progress 51 SECTION 7.10. Borrowing Base 52 SECTION 7.11. No Margin Stock 52 SECTION 7.12. Mortgage Banking Subsidiaries' Capital Ratio 52 SECTION 7.13. Transactions with Affiliates 52 SECTION 7.14. Restrictions on Advances to Mortgage Banking Subsidiaries 52 SECTION 7.15. Adjusted Net Worth of Mortgage Banking Subsidiaries 53 ARTICLE VIII Collateral 54 SECTION 8.01. Security for Obligations 54 SECTION 8.02. Collateral Value 54 SECTION 8.03. Releases 55 SECTION 8.04. Substitute or Additional Collateral 56 SECTION 8.05. Collateral Documentation 56 SECTION 8.06. Powers and Duties of the Borrower with Respect to the Collateral 58 SECTION 8.07. Power of Attorney 59 ARTICLE IX Events of Default 59 SECTION 9.01. Events of Default 59 SECTION 9.02. Right to Rescind Acceleration 61 SECTION 9.03. Rights as to Collateral 62 SECTION 9.04. Application of Funds 64 ARTICLE X The Agent 65 SECTION 10.01. Appointment 65 SECTION 10.02. Powers 65 SECTION 10.03. General Immunity 65 SECTION 10.04. No Responsibility for Loans, Recitals, etc. 65 SECTION 10.05. Employment of Agents and Counsel 66
- (iii) - SECTION 10.06. Reliance on Documents; Counsel 66 SECTION 10.07. No Waiver of Rights 66 SECTION 10.08. Knowledge of Event of Default 67 SECTION 10.09. Agent's Reimbursement and Indemnification 67 SECTION 10.10. Notices to the Borrower 67 SECTION 10.11. Action on Instructions of Lenders 67 SECTION 10.12. Lender Credit Decision 68 SECTION 10.13. Resignation or Removal of the Agent 68 SECTION 10.14. Benefits of Article X 68 ARTICLE XI Setoff; Ratable Payments 69 SECTION 11.01. Setoff 69 SECTION 11.02. Ratable Payments 69 ARTICLE XII Benefit of Agreement; Assignments; Participations 69 SECTION 12.01. Successors and Permitted Assigns 69 SECTION 12.02. Participations 70 SECTION 12.03. Assignments 71 ARTICLE XIII Miscellaneous 72 SECTION 13.01. Notice 72 SECTION 13.02. Survival of Representations 72 SECTION 13.03. Expenses 72 SECTION 13.04. Indemnification of the Lenders and the Agent 73 SECTION 13.05. Maximum Interest Rate 74 SECTION 13.06. Modification of Agreement 74 SECTION 13.07. Preservation of Rights 75 SECTION 13.08. Joint and Several Obligations of Borrower; Several Obligations of Lenders 75 SECTION 13.09. Severability 75 SECTION 13.10. Counterparts 75 SECTION 13.11. Representation and Warranty by the Lenders 75 SECTION 13.12. The Company as Agent for Each Other Borrower 76 SECTION 13.13. Loss, etc., Notes 76 SECTION 13.14. Governmental Regulation 76 SECTION 13.15. Taxes 76 SECTION 13.16. Headings 76 SECTION 13.17. Entire Agreement 76 SECTION 13.18. CHOICE OF LAW 77 SECTION 13.19. CONSENT TO JURISDICTION 77 SECTION 13.20. WAIVER OF JURY TRIAL 77
- (iv) - REVOLVING CREDIT AGREEMENT, dated as of July 29, 1994, among LENNAR CORPORATION, a corporation organized and existing under the laws of the State of Delaware (the "Company"), the Subsidiaries of the Company listed in Schedule I hereto (said Subsidiaries, together with the Company, hereinafter individually and collectively referred to as the "Borrower"), the lenders listed in Schedule II hereto (hereinafter such lenders, together with any additional lenders as provided in Section 2.21 below, are collectively referred to as the "Lenders"), and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (the "Agent"). RECITALS The Borrower desires to obtain from the Lenders and the Lenders are willing to provide to the Borrower revolving credit loans in an aggregate principal amount outstanding from time to time not exceeding $250,000,000, upon the terms and subject to the conditions hereinafter set forth; PROVIDED, HOWEVER, that the aggregate principal amount of the Aggregate Commitments of the Lenders may be increased as provided in Section 2.21 below. AGREEMENT In consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows: ARTICLE I CERTAIN DEFINED TERMS SECTION 1.01. CERTAIN DEFINED TERMS. As used herein, each of the following terms shall have the meaning ascribed to it below, which meaning shall be applicable to both the singular and plural forms of the terms defined: "ADVANCE" means a borrowing hereunder consisting of the aggregate amount of the several Loans made by the Lenders to the Borrower of the same Type and, in the case of Fixed Rate Advances, for the same Interest Period. "AFFILIATE" of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise. "AGENT" means The First National Bank of Chicago in its capacity as agent for the Lenders pursuant to Article X, and not in its individual capacity as a Lender, and any successor Agent appointed pursuant to Article X. "AGGREGATE COMMITMENT" means the aggregate of the Commitments of all the Lenders, as increased or reduced from time to time pursuant to the terms hereof. "AGREEMENT" means this Revolving Credit Agreement, as it may be amended or modified and in effect from time to time. "AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting principles as in effect from time to time in the United States, applied in a manner consistent with those used in preparing the financial statements referred to in Section 4.03. "AFSI" means Ameristar Financial Services, Inc. "APPLICABLE MARGIN" means, with respect to an outstanding Fixed CD Rate Loan or a Eurodollar Loan during any Interest Period, a rate per annum equal to 1.15% if Borrower's senior unsecured long-term debt is not rated by Standard & Poor's or Moody's. In the event that Borrower's senior unsecured long-term debt is rated without regard to credit enhancement by either Standard & Poor's or Moody's, the Applicable Margin shall be determined in accordance with the following table, such Applicable Margin to remain in effect for each Interest Period during all of which the applicable rating shall remain in effect: APPLICABLE RATING RATE ------ ---------- Equal to or better than BBB- from Standard & Poor's or Baa3 from Moody's 1.05% Lower than BBB- from Standard & Poor's or Baa3 from Moody's 1.25% "APPRAISED VALUE" means, with respect to an interest in Real Estate as of a given date, the then current fair market value of that interest as determined in accordance with generally accepted methods of appraising by a qualified appraiser, selected by the Agent (after application by the Agent of the standards and procedures set forth in Section 8.01), who is a member of the American Institute of Real Estate Appraisers or of another nationally recognized group of professional appraisers. 2 "ARTICLE" means an article of this Agreement unless another document is specifically referenced. "ASSESSMENT RATE" means, for any CD Interest Period, the assessment rate per annum (rounded upwards to the next higher multiple of 1/100 of 1% if the rate is not such a multiple) payable to the Federal Deposit Insurance Corporation (or any successor) for the insurance of domestic deposits of First Chicago, as estimated by First Chicago on the first day of such CD Interest Period. "AUDITED FINANCIAL STATEMENTS" is defined in Section 4.03. "AUTHORIZED OFFICER" means any of Leonard Miller, Allan J. Pekor, M.E. Saleda, Mary Raurell, or any other Person designated by the Borrower in writing to act as an Authorized Officer hereunder, acting singly. "BORROWER" has the meaning assigned to that term in the introductory paragraph of this Agreement. Whenever used in this Agreement, the term "Borrower" refers to and means each of the entities comprising the Borrower, individually, and all of such entities, collectively. All of the entities comprising the Borrower shall be jointly and severally liable as Borrower under this Agreement, the Notes, and all other Loan Documents. "BORROWING BASE" means, from time to time, the sum of the following amounts, all as reflected from time to time in accordance with United States generally accepted accounting principles consistently applied in the consolidated balance sheet of the Borrower: (i) 100% of Borrower's unrestricted cash up to a maximum of $10,000,000 (with any excess cash being excluded from the Borrowing Base); (ii) 100% of the Net Proceeds due to Borrower at closing as a result of the consummation of the sale of any Housing Unit, which Net Proceeds have been paid to the closing agent handling such sale but which have not yet been received by Borrower; PROVIDED, HOWEVER, that if, and to the extent that, such Net Proceeds which are reported as outstanding on the last day of any fiscal quarter of Borrower are not received by Borrower on or before the tenth (10th) day following the end of any such fiscal quarter, such Net Proceeds shall not be included in the Borrowing Base; (iii) 75% of the Net Book Value of all Housing Units under Contract; (iv) 65% of the Net Book Value of all Housing Units owned by Borrower (including, without limitation, model Housing Units) that are not subject to a contract for sale, PROVIDED that the amount determined pursuant to this clause (iv) shall not exceed 30% of the aggregate Commitments of the Lenders (with any excess being excluded from the Borrowing Base); (v) the lower of (A) 100% of the Net Book Value of all Income Producing Properties (on an asset-by-asset basis), or (B) six and one-half (6 1/2) times the Net Operating Income for the four fiscal quarters immediately preced- 3 ing the date as of which Net Operating Income is to be determined, PROVIDED that the amount determined pursuant to this clause (v) shall not exceed 40% of the aggregate Commitments of the Lenders (with any excess being excluded from the Borrowing Base); and (vi) 50% of the Net Book Value of all substantially improved land owned by the Borrower, PROVIDED that the amount determined pursuant to this clause (vi) shall not exceed 25% of the aggregate Commitments of the Lenders (with any excess being excluded from the Borrowing Base); PROVIDED, HOWEVER, that notwithstanding anything to the contrary provided herein, any asset which is encumbered by a Lien shall not be included in the calculation of the Borrowing Base pursuant to clauses (i) - (vi) above and the Discontinued Assets shall also be disregarded in computation of the Borrowing Base. For purposes of clause (vi) above, "substantially improved land" shall mean land with respect to which at least 80% of the standard improvements (including zoning and platting, engineering design and permits, filling to grade, main water distribution and sewage collection systems and drainage system installation, but excluding sidewalks, landscaping and sodding, decor and privacy walls, recreation facilities, guardhouse and street lights) have been completed. "BORROWING DATE" means a date on which an Advance is made hereunder. "BORROWING NOTICE" is defined in Section 2.09. "BUSINESS DAY" means (i) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks are open for business in Chicago and New York and on which dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks are open for business in Chicago. "CAPITALIZED LEASE" of a Person means any lease of property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles. "CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles. "CD INTEREST PERIOD" means, with respect to a Fixed CD Rate Advance, a period of 30, 60, 90 or 180 days, as available, commencing on a Business Day selected by the Borrower pursuant to this Agreement. If such CD Interest Period would end on a day 4 which is not a Business Day, such CD Interest Period shall end on the next succeeding Business Day. "CODE" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. "COLLATERAL" means, at any time, any assets owned by the Borrower that then are subject to a Mortgage or security interest in favor of the Agent as security for the Obligations. "COLLATERAL VALUE" means (i) with respect to Real Estate that is (or is to be) part of the Collateral, the Appraised Value thereof, less the aggregate outstanding amount of all prior Mortgages and other prior liens or encumbrances upon such Real Estate, and (ii) with respect to a Mortgage Receivable that is (or is to be) part of the Collateral, (x) if it is not then in "default", the outstanding principal balance thereof, and (y) if it is then in "default", zero. For the purposes of this definition, a Mortgage Receivable shall be deemed to be in "default" if the relevant mortgagor is in default beyond any applicable grace period in any of its obligations under the provisions of the Mortgage Receivable, as in effect on the date the same is pledged to the Agent hereunder, subject only to subsequent modifications or waivers consented to by the Required Lenders. The value, if any, of the Mortgage Banking Subsidiaries Note shall not be included in the calculation of the Collateral Value. "COMMITMENT" means, for each of the Lenders, the obligation of such Lender to make Loans not exceeding the amount set forth opposite its signature below, as such amount may be modified from time to time pursuant to the terms hereof. "COMPLETED HOUSING UNIT" means, at any time, a Housing Unit the construction of which was commenced more than 10 months, in the case of a single family home, more than 12 months, in the case of a townhouse, or more than 18 months, in the case of a condominium, before that time. "CONTINGENT OBLIGATION" of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement or take-or-pay contract. With respect to the Borrower, Contingent Obligation includes, without limitation of the foregoing, obligations under reimbursement agreements with financial institutions 5 (including Lenders) relating to letters of credit issued by such financial institutions for the account of Borrower. "CONVERSION/CONTINUATION NOTICE" is defined in Section 2.10(d). "CONTROLLED GROUP" means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code. "CORPORATE BASE RATE" means a rate per annum equal to the corporate base rate of interest announced by First Chicago from time to time, changing when and as said corporate base rate changes. "DCA" means Development Corporation of America. "DOLLARS" and the sign "$" each means lawful money of the United States of America. "DISCONTINUED ASSETS" means all assets owned by DCA or any subsidiary of DCA for use in any of its textile and mining operations. "EFFECTIVE DATE" means July 29, 1994. "ENVIRONMENTAL LAWS" means all federal, state and local environmental, health or safety laws, regulations and rules of common law. "EQUITY INVESTMENT" means the ownership of, or participation in the ownership of, an equity interest in Real Estate or an equity interest in a Person in the business of owning, developing, improving, operating or managing Real Estate. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time. "EURODOLLAR ADVANCE" means an Advance which bears interest at a Eurodollar Rate. "EURODOLLAR BASE RATE" means, with respect to a Eurodollar Advance for the relevant Eurodollar Interest Period, the rate determined by the Agent to be the rate at which deposits in U.S. dollars are offered by First Chicago to first-class banks in the London interbank market at approximately 11 a.m. (London time) two Business Days 6 prior to the first day of such Eurodollar Interest Period, in the approximate amount of First Chicago's relevant Eurodollar Loan and having a maturity approximately equal to such Eurodollar Interest Period. "EURODOLLAR INTEREST PERIOD" means, with respect to a Eurodollar Advance, a period of one, two, three or six months, as available, commencing on a Business Day selected by the Borrower pursuant to this Agreement. Such Eurodollar Interest Period shall end on (but exclude) the day which corresponds numerically to such date one, two, three or six months thereafter, PROVIDED, HOWEVER, that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Eurodollar Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month. If a Eurodollar Interest Period would otherwise end on a day which is not a Business Day, such Eurodollar Interest Period shall end on the next succeeding Business Day, PROVIDED, HOWEVER, that if said next succeeding Business Day falls in a new calendar month, such Eurodollar Interest Period shall end on the immediately preceding Business Day. "EURODOLLAR LOAN" means a Loan which bears interest at a Eurodollar Rate. "EURODOLLAR RATE" means, with respect to a Eurodollar Advance for the relevant Eurodollar Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to such Eurodollar Interest Period, plus (ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next higher multiple of 1/16 of 1% if the rate is not such a multiple. "EVENT" means an event, circumstance, condition or state of facts. "EVENT OF DEFAULT" is defined in Section 9.01 hereof. "EXISTING LOANS" means advances under the Prior Credit Agreement from the Prior Lenders to the Borrower outstanding immediately prior to the Effective Date. "FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10 a.m. (Chicago time) on such day on such transactions re- 7 ceived by the Agent from three Federal funds brokers of recognized standing selected by the Agent in its sole discretion. "FIRST CHICAGO" means The First National Bank of Chicago in its individual capacity, and its successors. "FIRST MORTGAGE" means a Mortgage that (i) creates a lien that covers any Real Estate and all developments thereto and/or improvements thereon, whether existing at the time the lien is created or thereafter made, (ii) takes priority or precedence over all other liens and encumbrances to which the Real Estate is subject, and (iii) must be satisfied before all other liens and encumbrances to which the Real Estate is subject are entitled to participate in the proceeds of any sale or other disposition of such Real Estate. "FIXED CD BASE RATE" means, with respect to a Fixed CD Rate Advance for the relevant CD Interest Period, the rate determined by the Agent to be the arithmetic average of the prevailing bid rates quoted to the Agent at or before 10 a.m. (Chicago time) on the first day of such CD Interest Period by three New York or Chicago certificate of deposit dealers of recognized standing selected by the Agent in its sole discretion for the purchase at face value of certificates of deposit of First Chicago in the approximate amount of First Chicago's relevant Fixed CD Rate Loan and having a maturity approximately equal to such CD Interest Period. "FIXED CD RATE" means, with respect to a Fixed CD Rate Advance for the relevant CD Interest Period, a rate per annum equal to the sum of (i) the quotient of (a) the Fixed CD Base Rate applicable to such CD Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to such CD Interest Period, plus (ii) the Assessment Rate applicable to such CD Interest Period, plus (iii) the Applicable Margin. The Fixed CD Rate shall be rounded to the next higher multiple of 1/100 of 1% if the rate is not such a multiple. "FIXED CD RATE ADVANCE" means an Advance which bears interest at a Fixed CD Rate. "FIXED CD RATE LOAN" means a Loan which bears interest at a Fixed CD Rate. "FIXED RATE" means the Fixed CD Rate or the Eurodollar Rate. "FIXED RATE ADVANCE" means an Advance which bears interest at a Fixed Rate. "FIXED RATE LOAN" means a Loan which bears interest at a Fixed Rate. 8 "FLOATING RATE" means, for any day, a rate per annum equal to the higher of (i) the Corporate Base Rate for such day or (ii) the sum of (X) the Federal Funds Effective Rate plus 0.5%, in each case changing when and as the Corporate Base Rate and the Federal Funds Effective Rate change. "FLOATING RATE ADVANCE" means an Advance which bears interest at the Floating Rate. "FLOATING RATE LOAN" means a Loan which bears interest at the Floating Rate. "HAZARDOUS SUBSTANCES" means any toxic or hazardous wastes, pollutants or substances, including, without limitation, asbestos, PCBs, petroleum products and by-products, substances defined or listed as "hazardous substances" or "toxic substances" or similarly identified in or pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. [Section] 9061 ET SEQ., hazardous materials identified in or pursuant to the Hazardous Materials Transportation Act 49 U.S.C. [Section] 1802 ET SEQ., hazardous wastes identified in or pursuant to The Resource Conservation and Recovery Act, 42 U.S.C. [Section] 6901 ET SEQ., any chemical substance or mixture regulated under the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. [Section] 2601 ET SEQ., any "toxic pollutant" under the Clean Water Act, 33 U.S.C. [Section] 466 ET SEQ., as amended, any hazardous air pollutant under the Clean Air Act, 42 U.S.C. [Section] 7401 et seq., and any hazardous or toxic substance or pollutant regulated under any other applicable federal, state or local Environmental Laws. "HOUSING UNIT" means a residential housing unit that is (or, upon completion of construction thereof, will be) available for sale. "HOUSING UNIT CLOSING" means a closing of the sale of a Housing Unit by the Borrower to a bona fide purchaser for value that is not an Affiliate of the Borrower. "HOUSING UNIT UNDER CONTRACT" means a Housing Unit owned by the Borrower as to which the Borrower has a bona fide contract of sale, in a form customarily employed by the Borrower and reasonably satisfactory to the Agent, entered into not more than 15 months prior to the date of determination with a Person who is not an Affiliate of the Borrower, under which contract no defaults then exist and not less than 10% of the purchase price has been paid; PROVIDED, HOWEVER, that in the case of any Housing Unit the purchase of which is to be financed in whole or in part by a loan insured by the Federal Housing Administration or guaranteed by the Veterans Administration, the required minimum downpayment shall be the amount (if any) required under the rules of the relevant agency. 9 "INCOME PRODUCING PROPERTIES" means all industrial Real Estate, commercial Real Estate or multiple family dwellings owned and developed by the Borrower, except for Real Estate developed for sale as condominium units directly to individual purchasers for their residential use. "INDEBTEDNESS" of a Person means such Person's (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of property or services (other than accounts payable arising in the ordinary course of such Person's business payable on terms customary in the trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) Capitalized Lease Obligations, and (vi) liabilities and obligations under any sales/leaseback and receivable sales transactions. With respect to the Borrower, Indebtedness includes, without limitation of the foregoing, all Obligations. "INTEREST PERIOD" means a CD Interest Period or a Eurodollar Interest Period. "INVESTMENT" of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade), deposit account or contribution of capital by such Person to any other Person or any investment in, or purchase or other acquisition of, the stock, partnership interests, notes, debentures or other securities of any other Person made by such Person. "JUNIOR MORTGAGE" means a Mortgage which is a valid lien and encumbrance on Real Estate that is subject to the priority of one or more other Mortgages. "LENDERS" means the lending institutions listed on the signature pages of this Agreement, any additional financial institutions which become Lenders pursuant to Section 2.21 and the respective successors and permitted assigns of the foregoing. "LENDING INSTALLATION" means, with respect to a Lender or the Agent, any office, branch, subsidiary or affiliate of such Lender or the Agent. "LFC" means Lennar Funding Corp. "LFSI" means Lennar Financial Services, Inc. 10 "LIABILITIES" of a Person means all items included in the liability section of a balance sheet of that Person prepared in accordance with United States generally accepted accounting principles consistently applied as of the date of calculation. Without limiting the generality of the foregoing, the term "Liabilities" shall include, without limitation: (i) all Indebtedness secured by any Mortgage, lien, pledge, security interest, charge or encumbrance upon or in property owned by that Person, to the extent attributable to that Person's interest in the property, even though that Person has not assumed or become liable for the payment of the Indebtedness; and (ii) the aggregate amount of the reserves established on the books of that Person in respect of contingent liabilities and other contingencies (except reserves which are properly treated as deductions from assets) and in any event shall include with respect to the Borrower the amount of all outstanding Loans. "LIEN" means any lien (statutory or other), mortgage (including, without limitation, purchase money mortgages), pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement). "LIMITED PURPOSE FINANCE SUBSIDIARIES" means the limited purpose finance subsidiaries as identified on the financial statements referred to in Section 4.03. "LOAN" means, with respect to a Lender, such Lender's portion of any Advance. "LOAN DOCUMENTS" means this Agreement, the Notes, any Mortgages and assignments of Mortgage Receivables delivered to the Agent pursuant to Article VIII hereof and any and all other instruments or documents delivered or to be delivered by the Borrower pursuant hereto and thereto, as such documents may be amended or modified and in effect from time to time. "MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the business, properties, assets, condition (financial or otherwise), results of operations, or prospects of (a) the Company and the other entities comprising the Borrower, taken as a whole, or (b) if so specified, any entity comprising the Borrower, (ii) the ability of the Borrower to perform its obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Agent or the Lenders thereunder. "MATURITY DATE" means the date upon which the outstanding principal amount of the Notes, all accrued but unpaid interest thereof, and all other Obligations become due 11 and payable, whether as a result of the occurrence of the stated maturity date or the acceleration of maturity pursuant to the terms of any of the Loan Documents. "MOODY'S" means Moody's Investors Services, Inc. or any Person succeeding to the securities rating business of such company. "MONTHLY PAYMENT DATE" means the first day of each calendar month. "MORTGAGE" means any mortgage, deed of trust or other security deed in Real Estate, or in rights or interests, including leasehold interests, in Real Estate. "MORTGAGE BANKING SUBSIDIARY" means a Subsidiary of LFSI which is engaged or hereafter engages in the mortgage banking business, including the origination, servicing, packaging and/or selling of mortgages on residential single- and multi-family dwellings and/or commercial property, and in any event shall include AFSI, LFC and UAMC. "MORTGAGE BANKING SUBSIDIARIES NOTE" means the promissory note dated the Effective Date in the principal amount of $150,000,000 executed by the Mortgage Banking Subsidiaries as joint makers to the order of the Company which is to be held by the Agent pursuant to Section 6.10. The Mortgage Banking Subsidiaries Note shall be in form and substance as provided in Exhibit D attached hereto. "MORTGAGE RECEIVABLE" means a note or other similar instrument evidencing Indebtedness that is secured by a Mortgage in favor of the Borrower on Real Estate sold by the Borrower to a bona fide purchaser for value that is not an Affiliate of the Borrower, provided that (i) the sale is made pursuant to a contract under which the purchaser has made a nonrefundable cash payment to the Borrower in any amount not less than 20% of the total purchase price of the Real Estate so sold, (ii) the note or other instrument and Mortgage are genuine, constitute legal, valid, binding and enforceable obligations of the purchaser, are not subject to any dispute, setoff, counterclaim or defense and are freely negotiable and assignable to the Agent, and (iii) the maturity of the note or other instrument is on or before the fifth anniversary of the date of execution and delivery thereof. For the purposes of this definition, a note or other instrument and Mortgage shall be deemed legal, valid, binding and enforceable obligations of the maker thereof notwithstanding that the Borrower does not have the right to enforce payment of the Indebtedness evidenced and secured thereby against the maker thereof other than through foreclosure of the Mortgage or other recourse to the Real Estate encumbered thereby. "MULTIEMPLOYER PLAN" means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Borrower or any member of the 12 Controlled Group is a party to which more than one employer is obligated to make contributions. "NET BOOK VALUE" means, with respect to an asset owned by a Borrower, the gross investment of that Borrower in the asset, less all reserves (including loss reserves and reserves for depreciation) attributable to that asset, all determined in accordance with United States generally accepted accounting principles consistently applied. "NET OPERATING INCOME" means, for any period, the total rental and other income of the Income Producing Properties for such period, less all related operating expenses of those Properties for such period, and less all related extraordinary reserves (including without limitation reserves for replacement escrows, major repairs and capital expenditures) established for such Properties for such period, all as reflected in the statement of operations for such Properties provided to the Lenders pursuant to Section 6.04(o). "NET PROCEEDS" means, in connection with the sale of any asset by the Borrower, the gross sales price less (A) all bona fide prorations and adjustments to the sales price required to be made pursuant to the terms of the sales contract and (B) the aggregate amount of bona fide closing costs due to any Person that is not an Affiliate of the Borrower. "NONRECOURSE DEBT" means Indebtedness of the Borrower secured by a Mortgage on Real Estate of the Borrower, as to which Indebtedness the sole recourse of the holders thereof is to the Real Estate encumbered by that Mortgage and none of such holders has the right (as a matter of law, by contract or otherwise) to enforce payment thereof against the Borrower or any of the Borrower's properties and assets other than the Real Estate encumbered by that Mortgage. "NOTE" means a promissory note in substantially the form of Exhibit A hereto, completed, executed and delivered by the Borrower and payable to the order of a Lender in the amount of its Commitment, including any amendment, modification, renewal or replacement of such promissory note. "NOTICE OF ASSIGNMENT" is defined in Section 12.03(b). "OBLIGATIONS" means all unpaid principal of and accrued and unpaid interest on the Notes, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the Agent or any indemnified party arising under the Loan Documents. 13 "PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto. "PARTICIPANTS" is defined in Section 12.02. "PERSON" means any natural person, corporation, firm, enterprise, trust, association, company, partnership, joint venture or other entity or organization, or any government or political subdivision or any agency, department, or instrumentality thereof. "PLAN" means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which the Borrower or any member of the Controlled Group may have any liability. "PRIOR LENDERS" are those Lenders listed on Schedule III. "PRIOR CREDIT AGREEMENT" means the Revolving Credit Agreement dated as of July 29, 1993, as heretofore modified and amended. "PROJECT" means a group of Housing Units of substantially the same type, design and price range that have been constructed, are under construction or are to be constructed in a specific geographical area, except that each building in a multi-family condominium development having 24 or more housing units shall be considered a "Project". "PRO RATA SHARE" means, for each Lender, the ratio that such Lender's Commitment bears to the Aggregate Commitment. "PURCHASERS" is defined in Section 12.03(a). "QUARTERLY PAYMENT DATE" means the first day of each April, July, October and January. "REAL ESTATE" means land, rights in land and interests therein (including, without limitation, leasehold interests), and equipment, structures, improvements, furnishings, fixtures and buildings (including a mobile home of the type usually installed on a developed site) located on or used in connection with land, rights in land or interests therein (including leasehold interests), but shall not include Mortgages or interests therein. "RECENT BALANCE SHEET" is defined in Section 4.05. 14 "REGULATION D" means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System. "REGULATION U" means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System. "REPORTABLE EVENT" means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event, PROVIDED, HOWEVER, that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code. "REQUIRED LENDERS" means, at any time, Lenders then holding Notes having outstanding principal balances aggregating not less than 66-2/3% of the outstanding principal amount of the Notes, or if no such principal amount is then outstanding, Lenders having at least 66-2/3% of the Aggregate Commitment. "RESERVE REQUIREMENT" means, with respect to a CD Interest Period or a Eurodollar Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on new non-personal time deposits of $100,000 or more with a maturity equal to that of such CD Interest Period (in the case of Fixed CD Rate Advances) or on Eurocurrency liabilities (in the case of Eurodollar Advances). "REVOLVING COLLATERAL VALUE" means, on any date, 125% of the sum of the then aggregate outstanding principal balance of the Notes and the aggregate amount of all accrued and unpaid interest on the Notes. "SECTION" means a numbered section of this Agreement, unless another document is specifically referenced. "SECURITIES" of any Person means equity securities and debt securities and any other instrument commonly understood to be a security issued by that Person. 15 "SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any member of the Controlled Group for employees of the Borrower or any member of the Controlled Group. "STANDARD & POOR'S" means Standard & Poor's Corporation and any Person succeeding to the securities rating business of such company. "STI" means Strategic Technologies, Inc., a Florida corporation. "SUBORDINATED DEBT" of a Person means any Indebtedness of that Person which by its terms is subordinated, in form and substance and in a manner satisfactory to the Agent, in lien and right of payment to the prior payment in full of the Obligations. "SUBSIDIARY" of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. "TANGIBLE NET WORTH" means the amount of consolidated stockholders' equity of the Company as shown on its balance sheet less the aggregate amount of all of the following: (i) goodwill and other assets that are properly classified as "intangible assets", exclusive of the Mortgage Banking Subsidiaries, (ii) the assets of the Limited Purpose Finance Subsidiaries, STI and TIC, less the liabilities of the Limited Purpose Finance Subsidiaries, STI and TIC, as shown on the Company's consolidated financial statements, and (iii) to the extent not deducted pursuant to the immediately preceding clause (ii), the amount of stockholders' equity of the Mortgage Banking Subsidiaries, STI and TIC as shown on the separate consolidating financial statements for LFSI. "TERMINATION DATE" means the later of (i) July 29, 1997 or (ii) the date to which this Agreement is extended pursuant to Section 2.07, subject, however, to earlier termination in whole of the Aggregate Commitment pursuant to the terms of this Agreement. "TIC" means TitleAmerica Insurance Corporation, a Florida corporation. "TRANSFEREE" is defined in Section 12.03(c). 16 "TYPE" means, with respect to any Advance, its nature as a Floating Rate Advance, Eurodollar Advance or Fixed CD Rate Advance. "UAMC" means Universal American Mortgage Company. "UNAUDITED FINANCIAL STATEMENTS" is defined in Section 4.03. "UNCONSOLIDATED JOINT VENTURE" shall mean a joint venture (whether in the form of a corporation, a partnership or otherwise) (i) to which the Borrower is or becomes a party (other than the tenancies in common listed in Schedule VII annexed hereto), (ii) which Borrower is not required to consolidate in its financial statements in accordance with United States generally accepted accounting principles, and (iii) in which the Borrower has or will have a total investment exceeding $25,000 or which has total assets plus contingent liabilities exceeding $100,000. For the purposes of this definition, the Borrower's investment in a joint venture shall be deemed to include any Securities of the joint venture owned by the Borrower, any loans, advances or accounts receivable by the Borrower from the joint venture, any commitments, arrangement or other agreement by the Borrower to provide funds or credit to the joint venture and the Borrower's share of the undistributed profits of the joint venture. "UNFUNDED LIABILITIES" means the amount (if any) by which the present value of all vested nonforfeitable benefits under all Single Employer Plans exceeds the fair market value of all such Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plans. "UNMATURED DEFAULT" means an event which but for the lapse of time or the giving of notice, or both, would constitute an Event of Default. "WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. SECTION 1.02. COMPUTATION OF TIME PERIODS. For the purposes of this Agreement, in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including", the words "to" and "until" each means "to but excluding" and the word "through" means "to and including". 17 SECTION 1.03. ACCOUNTING TERMS. All accounting terms used and not specifically defined herein shall be construed in accordance with Agreement Accounting Principles. All references herein to Agreement Accounting Principles shall be deemed to refer to those principles; PROVIDED, HOWEVER, that notwithstanding the requirements imposed by United States generally accepted accounting principles which require the consolidation of the operations of LFSI with the operations of the Borrower, for the purposes of the calculations set forth in Article VII hereof, the operations of such Subsidiary shall be so included only as specifically provided for herein. ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES SECTION 2.01. EXISTING LOANS; LOANS PRIOR TO THE TERMINATION DATE; MAXIMUM CREDIT FACILITIES. (a) The Borrower acknowledges that the Prior Lenders have made the Existing Loans pursuant to the Prior Credit Agreement. The aggregate principal amount outstanding under the Existing Loans as of the date hereof is $_____________. The Existing Loans are payable in accordance with the terms of the Prior Credit Agreement, subject to no offsets, defenses, counterclaims or other claims. On the Effective Date, the Lenders shall make an Advance to the Borrower in the aggregate amount of the then outstanding principal amount of the Existing Loans, the proceeds of which shall be applied by the Borrower to repay those loans in full. (b) From and including the date of this Agreement and prior to the Termination Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement and in reliance upon the representations and warranties of Borrower herein set forth, to make Loans to the Borrower from time to time in amounts not to exceed in the aggregate at any one time outstanding the amount of its Commitment. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow at any time prior to the Termination Date. (c) Notwithstanding anything to the contrary contained in this Agreement, the maximum principal amount of outstanding Advances shall not at any time exceed $250,000,000. SECTION 2.02. RATABLE LOANS. Each Advance hereunder shall consist of Loans made from the several Lenders ratably in their respective Pro Rata Shares. 18 SECTION 2.03. TYPES OF ADVANCES; FINAL MATURITY. (i) The Advances may be Floating Rate Advances, Fixed CD Rate Advances or Eurodollar Advances, or a combination thereof, selected by the Borrower in accordance with Section 2.09. (ii) All Obligations shall be fully repaid and satisfied by the Borrower on the Termination Date or shall become due and payable pursuant to Section 9.01 below. SECTION 2.04. MANDATORY PRINCIPAL PAYMENTS. The Borrower shall prepay the principal of the Notes in the amount, and promptly upon its receipt, of (i) the Net Proceeds of (or, in the case of a partially-financed sale, the net cash down payment received in connection with) any sale of Real Estate constituting part of the Collateral owned by the Borrower that is subject to a Mortgage in favor of the Agent securing the Notes, (ii) any principal payment made with respect to a Mortgage Receivable constituting part of the Collateral, and (iii) any principal payment made with respect to the Mortgage Banking Subsidiaries Note from and after the date the Agent is granted a security interest therein pursuant to Section 8.01; PROVIDED, HOWEVER, that anything in the foregoing clauses (i) and (ii) to the contrary notwithstanding, the Borrower shall not be required to prepay the Notes with the proceeds of the sale of Real Estate constituting part of the Collateral once it has applied to the prepayment of the Notes proceeds of that sale (including, in the case of a partially financed sale, the proceeds of any principal payments with respect to Mortgage Receivables received in connection therewith) in an aggregate amount equal to the Appraised Value of the Real Estate sold. SECTION 2.05. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time pay, without penalty or premium, all outstanding Floating Rate Advances, or, in a minimum aggregate amount of $100,000 or any integral multiple of $100,000 in excess thereof, any portion of the outstanding Floating Rate Advances upon one Business Day's prior notice to the Agent. A Fixed Rate Advance may not be paid prior to the last day of the applicable Interest Period. SECTION 2.06. COMMITMENT FEE AND REDUCTION OF COMMITMENTS. The Borrower agrees to pay to the Agent for the account of each Lender a commitment fee of 0.375% per annum on the daily unborrowed and unused portion of such Lender's Commitment (i.e., after deducting from the Commitment of such Lender the outstanding amount of all Loans made by such Lender) from the date hereof to and including the Termination Date, payable in arrears on each Quarterly Payment Date hereafter and on the Termination Date. The Borrower may permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders in integral multiples of $100,000, 19 upon at least three Business Days' written notice to the Agent, which notice shall specify the amount of any such reduction, PROVIDED, HOWEVER, that the amount of the Aggregate Commitment may not be reduced below the aggregate principal amount of the outstanding Advances. All accrued commitment fees under this Section 2.06 shall be payable on the effective date of any termination of the obligations of the Lenders to make Loans hereunder. The fees payable under this Section 2.06, once paid, shall not be refundable for any reason. SECTION 2.07. EXTENSION OF TERMINATION DATE; EXTENSION FEE. (a) During the 15-day period which is not more than 105 days and not less than 90 days prior to each anniversary of the Effective Date (the "Request Period"), the Borrower may request a one-year extension of the Termination Date by submitting a request for an extension to the Agent (an "Extension Request"). If no Extension Request is made in a Request Period in any year or, if made, the same is denied hereunder, no further Extension Request may be made thereafter. Promptly upon receipt of an Extension Request, the Agent shall notify each Lender thereof and shall request each Lender to approve the Extension Request on or prior to the sixtieth (60th) day after the Agent notifies such Lender of the Extension Request (the "Review Period"). Any Lender which does not notify the Agent prior to the expiration of the Review Period shall be deemed to have denied the Extension Request and be subject to replacement as a Lender hereunder and, if not so replaced, will withdraw its Commitment as of the then applicable Termination Date. Each Lender approving the Extension Request (an "Extending Lender") shall deliver its written consent to the Agent and the Borrower prior to the expiration of the Review Period. Any such consent delivered by a Lender may be revoked up to and including the fourth (4th) day prior to the expiration of the Review Period, but shall be irrevocable thereafter. Provided that the consents of the Required Lenders are received by the Agent and remain in effect on the last day of the Review Period, the Termination Date shall be deemed extended until the first anniversary of the then applicable Termination Date, all references in this Agreement to the Termination Date shall mean the Termination Date as so extended, and the Agent shall promptly notify the Borrower and each Lender of the new Termination Date. Each Lender shall have the sole discretion as to whether to consent or withhold its consent to an Extension Request. (b) Upon being notified by the Agent that the Required Lenders have consented to an Extension Request, Borrower will pay to each Extending Lender an extension fee equal to a percentage of the Extending Lender's Commitment in accordance with the following table: 20
COMMITMENT AMOUNT FEE ---------- --- $25,000,000 or more 0.12% More than or equal to $15,000,000 but less than $25,000,000 0.08% Less than $15,000,000 0.05%
SECTION 2.08. METHOD OF BORROWING. Not later than noon (Chicago time) on each Borrowing Date, each Lender shall make available its Loan or Loans, in funds immediately available in Chicago to the Agent at its address specified pursuant to Article XI. The Agent will make the funds so received from the Lenders available to the Borrower by deposit into Account No. 5801117 maintained by the Borrower at First Chicago. SECTION 2.09. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES. (a) The Borrower shall select the Type of Advance and, in the case of each Fixed Rate Advance, the Interest Period applicable to each Advance from time to time. The Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not later than 10:00 a.m. (Chicago time) on the Borrowing Date for each Floating Rate Advance or Fixed CD Rate Advance and at least two Business Days before the Borrowing Date for each Eurodollar Advance, specifying: (i) the Borrowing Date, which shall be a Business Day, of such Advance, (ii) the aggregate amount of such Advance, (iii) the Type of Advance selected, and (iv) in the case of each Fixed Rate Advance, the Interest Period applicable thereto. The Borrower shall be entitled to obtain only one Advance in any single Business Day, which may be comprised in whole or in part of any Fixed Rate Advance. Changes in the rate of interest on that portion of any Advance maintained as a Floating Rate 21 Advance will take effect simultaneously with each change in the Floating Rate. Each Fixed Rate Advance shall bear interest from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such Fixed Rate Advance. The Borrower shall select Interest Periods with respect to Fixed Rate Advances so that it is not necessary to pay a Fixed Rate Advance prior to the last day of the applicable Interest Period in order to make any mandatory payment required be made pursuant to Section 2.04 above or to repay the Obligations in full on the Maturity Date. (b) Each Borrowing Notice shall be irrevocable and binding on the Borrower and, in respect of the borrowing specified in the Borrowing Notice, the Borrower shall indemnify each Lender against any loss or expense incurred by that Lender as a result of any failure to fulfill the applicable conditions set forth in Section 5.02 on or before the proposed Borrowing Date specified in the Borrowing Notice, including, without limitation, any loss (including loss of profit) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund the Loan to be made by that Lender as part of that borrowing when that Loan, as a result of that failure, is not made on that date. SECTION 2.10. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND CONTINUATION OF ADVANCES. (a) RIGHT TO CONVERT. The Borrower may elect from time to time, subject to the provisions of Section 2.10(c), to convert all or any part of an Advance of any Type into any other Type or Types of Advances; PROVIDED that any conversion of any Fixed Rate Advance shall be made on, and only on, the last day of the Interest Period applicable thereto. (b) AUTOMATIC CONVERSION AND CONTINUATION. Floating Rate Advances shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into Fixed Rate Advances. Fixed Rate Advances of any Type shall continue as Fixed Rate Advances of such Type until the end of the then applicable Interest Period therefor, at which time such Fixed Rate Advance shall be automatically converted into a Floating Rate Advance unless the Borrower shall have given the Agent notice in accordance with Section 2.10(d) requesting that, at the end of such Interest Period, such Fixed Rate Advance either continue as a Fixed Rate Advance of such Type for the same or another Interest Period or be converted into an Advance of another Type. (c) NO CONVERSION IN CASE OF AN EVENT OF DEFAULT OR UNMATURED DEFAULT. Notwithstanding anything to the contrary contained in Section 2.10(a) or 2.10(b), no Advance may be converted into or continued as a Fixed Rate Advance (except with the 22 consent of the Required Lenders) when any Event of Default or Unmatured Default has occurred and is continuing. (d) CONVERSION/CONTINUATION NOTICE. The Borrower shall give the Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion of an Advance or continuation of a Fixed Rate Advance not later than 10:00 a.m. (Chicago time) on the day of any conversion into a Floating Rate Advance or Fixed CD Rate Advance or at least two Business Days prior to the date of the requested conversion into or continuation of a Eurodollar Advance, specifying: (i) the requested date (which shall be a Business Day) of such conversion or continuation; (ii) the amount and Type of the Advance to be converted or continued; and (iii) the amount and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a Fixed Rate Advance, the duration of the Interest Period applicable thereto. SECTION 2.11. MINIMUM AMOUNT OF EACH ADVANCE. Each Fixed Rate Advance shall be in the minimum amount of $5,000,000 (and in multiples of $100,000 if in excess thereof), and each Floating Rate Advance shall be in the minimum amount of $500,000 and in multiples of $100,000 if in excess thereof), PROVIDED, HOWEVER, that any Floating Rate Advance may be in the amount of the unused Aggregate Commitment. SECTION 2.12. RATE AFTER MATURITY. Except as provided in the next sentence, any Advance not paid at maturity, whether by acceleration or otherwise, shall bear interest until paid in full at a rate per annum equal to the Floating Rate plus 5% per annum. In the case of a Fixed Rate Advance the maturity of which is accelerated, such Fixed Rate Advance shall bear interest at the rate otherwise applicable to such Interest Period plus 5% per annum for the remainder of the applicable Interest Period, and thereafter at the Floating Rate plus 5% per annum. SECTION 2.13. METHOD OF PAYMENT. All payments of principal, interest, and fees hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Agent at the Agent's address specified pursuant to Article XIII, or at any other Lending Installation of the Agent specified in writing by the Agent to the Borrower, by 11:00 a.m. (local time) on the date when due and shall be made ratably among the Lenders. Each payment delivered to the Agent for the account of 23 any Lender shall be delivered promptly by the Agent to such Lender in the same type of funds which the Agent received at its address specified pursuant to Article XIII or at any Lending Installation specified in a notice received by the Agent from such Lender. The Agent is hereby authorized to charge any account of the Borrower maintained with First Chicago for each payment of principal, interest and fees as it becomes due hereunder. The Agent shall endeavor in good faith to provide telephonic notice to Borrower prior to any such charge, but the Agent shall not be liable to Borrower or any other Person if Agent fails to provide any such notice. If and to the extent payment owed to any Lender is not made by the Borrower to the Agent or that Lender, as the case may be, when due hereunder or under the Note held by that Lender, the Borrower further authorizes such Lender to charge from time to time against any or all of the accounts maintained by the Borrower with the Lender, its subsidiaries, affiliates or branches any amount so due, subject to the provisions of Article XI. SECTION 2.14. NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to record the principal amount of each of its Loans and each repayment on the schedule attached to its Note; PROVIDED, HOWEVER, that the failure to so record shall not affect the Borrower's obligations under such Note. The Borrower hereby authorizes the Lenders and the Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any person or persons the Agent or any Lender in good faith believes to be acting on behalf of the Borrower. All actions taken by the Lenders and the Agent upon such telephonic notices are hereby approved by the Borrower, and the Lenders and the Agent shall incur no liability as a result of any such actions. The Borrower agrees to deliver promptly to the Agent a written confirmation, if such confirmation is requested by the Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Agent and the Lenders, the records of the Agent and the Lenders shall govern absent manifest error. SECTION 2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued on each Floating Rate Advance shall be payable on each Monthly Payment Date, commencing with the first such date to occur after the date hereof, and on the Maturity Date. Interest accrued on that portion of the outstanding principal amount of any Floating Rate Advance converted into a Fixed Rate Advance on a day other than a Monthly Payment Date shall be payable on the date of conversion. Interest accrued on each Fixed Rate Advance shall be payable on the last day of its applicable Interest Period, on any date on which the Fixed Rate Advance is prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued on each Fixed Rate Advance having an Interest Period longer than three months shall also be payable on the last day of each three-month interval during such Interest Period. Interest on Floating Rate Loans and commitment fees shall be calculated for actual days elapsed on the basis of a 365-day 24 year; interest on Eurodollar Loans and Fixed Rate Loans shall be calculated for actual days elapsed on the basis of a 360-day year. Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to noon (local time) at the place of payment. If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment. SECTION 2.16. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify each Lender of the contents of each Aggregate Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. The Agent will notify each Lender of the interest rate applicable to each Fixed Rate Advance promptly upon determination of such interest rate. SECTION 2.17. LENDING INSTALLATIONS. Each Lender may book its Loans at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Notes shall be deemed held by each Lender for the benefit of such Lending Installation. Each Lender may, by written or telex notice to the Agent and the Borrower, designate a Lending Installation through which Loans will be made by it and for whose account Loan payments are to be made. SECTION 2.18. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a Lender, as the case may be, notifies the Agent prior to the date on which it is scheduled to make payment to the Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Agent for the account of the Lenders, that it does not intend to make such payment, the Agent may assume that such payment has been made. The Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Agent, the recipient of such payment shall, on demand by the Agent, repay to the Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Agent until the date the Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan. 25 SECTION 2.19. WITHHOLDING TAX EXEMPTION. At least five Business Days prior to the first date on which interest or fees are payable hereunder for the account of any Lender, each Lender that is not incorporated under the laws of the United States of America, or a state thereof, agrees that it will deliver to each of the Borrower and the Agent two duly completed copies of United States Internal Revenue Service Form 1001 or 4224, certifying in either case that such Lender is entitled to receive payments under this Agreement and the Notes without deduction or withholding of any United States federal income taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to deliver to each of the Borrower and the Agent two additional copies of such form (or a successor form) on or before the date that such form expires (currently, three successive calendar years for Form 1001 and one calendar year for Form 4224) or becomes obsolete or after the occurrence of any event requiring a change in the most recent forms so delivered by it, and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrower or the Agent, in each case certifying that such Lender is entitled to receive payments under this Agreement and the Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender advises the Borrower and the Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. SECTION 2.20. UNCONDITIONAL OBLIGATION TO MAKE PAYMENTS. To the fullest extent permitted by law, the Borrower shall make all payments hereunder, under the Notes and under all of the other Loan Documents regardless of any defense or counterclaim, including any defense or counterclaim based on any law, rule or policy which is now or hereafter promulgated by any governmental authority or regulatory body and which may adversely affect the Borrower's obligations to make, or the right of the holder of any Note to receive, those payments. SECTION 2.21. ADMISSION OF ADDITIONAL LENDERS; INCREASE OF AGGREGATE AVAILABILITY. (a) Upon the approval of the Agent, additional financial institutions may become Lenders hereunder provided that (i) each such additional Lender and the amount of the Commitment of such Lender have been approved in writing by Borrower, (ii) Borrower shall have agreed in writing that all of the terms, covenants and provisions of this Agreement and all of the other Loan Documents shall, from and after the admission of each additional Lender, inure to the benefit of such Lender, (iii) each additional 26 Lender shall agree in writing to the amount of its Commitment and to be bound, from and after the date of its admission as an additional Lender, by all of the terms, conditions and provisions of this Agreement and the Loan Documents, to the same extent and with the same effect as if such additional Lender were an original signatory to this Agreement, (iv) Borrower shall have executed and delivered a Note which is payable to the order of the additional Lender in the amount of its Commitment, and (v) in no event shall the Aggregate Commitment at any time exceed $250,000,000. The form and substance of the documents required under clause (ii), (iii) and (iv) above must be fully acceptable to the Agent. The Agent shall provide written notice to all of the other Lenders hereunder of the admission of any additional Lender pursuant to this Section 2.21 and shall furnish to each of the other Lenders a copy of the agreements required under clauses (ii) and (iii) above. (b) Upon the admission of any additional Lender pursuant to this Section 2.21, such Lender shall make a Loan to Borrower in an amount sufficient, upon application of the proceeds thereof to the reduction of the outstanding Floating Rate Advances held by the other Lenders, to cause the principal amount outstanding under the Loans made by each Lender (including, without limitation, the Loan made by the additional Lender) to be in proportion to the ratio that the respective Commitments of the Lenders (including, without limitation, the additional Lender) bear to the Aggregate Commitment. The Borrower hereby irrevocably authorizes each additional Lender to fund to the Agent the Loan required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding Floating Rate Advances. To the extent that the amount of outstanding Floating Rate Advances is less than the amount of the Loan required to be made by the additional Lender, the additional Lender shall not be admitted until sufficient Floating Rate Advances exist as a result of the conversion of Fixed Rate Advances in accordance with the terms of this Agreement. After the additional Lender makes the Loan required to be made under this Section 2.21(b), each Advance under this Agreement shall consist of Loans made ratably by the several Lenders in accordance with this Article II. SECTION 2.22. COMPENSATING BALANCES. First Chicago shall have the right (but no obligation) to enter into a separate agreement with the Borrower which provides for the reduction of the interest rate payable to First Chicago hereunder in the event that the Borrower maintains collected balances in non-interest bearing accounts at First Chicago, but in no event shall such agreement affect the amounts payable under this Agreement to any other Lender. Similarly, each other Lender shall have the right (but no obligation) to enter into a separate agreement with the Borrower which provides for the rebate to Borrower of a portion of the interest paid to such Lender under this Agreement in the event that the Borrower maintains collected balances in non-interest 27 bearing accounts at such Lender, but in no event shall any such agreement affect the amounts payable under this Agreement to such Lender. ARTICLE III CHANGE IN CIRCUMSTANCES SECTION 3.01. YIELD-PROTECTION. If any law or any governmental or quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any interpretation thereof, or the compliance of any Lender therewith, (i) subjects any Lender or any applicable Lending Installation to any tax, duty, charge or withholding on or from payments due from the Borrower (excluding federal taxation of the overall net income of any Lender or applicable Lending Installation), or changes the basis of taxation of payments to any Lender in respect of its Loans or other amounts due it hereunder, or (ii) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Fixed Rate Advances), or (iii) imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation of making, funding or maintaining loans or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with loans, or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of loans held or interest received by it, by an amount deemed material by such Lender, then, within 15 days of demand by such Lender, the Borrower shall pay such Lender that portion of such increased expense incurred or reduction in an amount received which such Lender determines is attributable to making, funding and maintaining its Loans and its Commitment. SECTION 3.02. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines the amount of capital required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling such Lender is increased as a result of a Change, then, within 15 days of demand by such Lender, the 28 Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender determines is attributable to this Agreement, its Loans or its obligation to make Loans hereunder (after taking into account such Lender's policies as to capital adequacy). "Change" means (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change in any other law, governmental or quasi- governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the date of this Agreement which affects the amount of capital required or expected to be maintained by any Lender or any Lending Installation or any corporation controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices entitled "International Convergence of Capital Measurements and Capital Standards," including transition rules, and any amendments to such regulations adopted prior to the date of this Agreement. SECTION 3.03. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that maintenance of its Eurodollar Loans at a suitable Lending Installation would violate any applicable law, rule, regulation, or directive, whether or not having the force of law, or if the Agent determines that (i) deposits of a type and maturity appropriate to match fund Fixed Rate Advances are not available or (ii) the interest rate applicable to a Type of Advance does not accurately reflect the cost of making or maintaining such Advance, then the Agent shall suspend the availability of the affected Type of Advance and require any Fixed Rate Advances of the affected Type to be repaid or to be converted (in accordance with the terms of this Agreement) to any Type of Advance which is not affected and is then available under this Agreement. SECTION 3.04. FUNDING INDEMNIFICATION. If any payment of a Fixed Rate Advance occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a Fixed Rate Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain the Fixed Rate Advance. SECTION 3.05. LENDER STATEMENTS: SURVIVAL OF INDEMNITY. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its Fixed Rate Loans to reduce any liability of the Borrower to such Lender under Sections 3.01 and 3.02 or to avoid the unavailability of a Type of Advance under 29 Section 3.03, so long as such designation is not disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender as to the amount due, if any, under Sections 3.01, 3.02 or 3.04. Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a Fixed Rate Loan shall be calculated as though each Lender funded its Fixed Rate Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the Fixed Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement shall be payable on demand after receipt by the Borrower of the written statement. The obligations of the Borrower under Sections 3.01, 3.02 and 3.04 shall survive payment of the Obligations and termination of this Agreement. ARTICLE IV REPRESENTATIONS AND WARRANTIES The entities comprising the Borrower jointly and severally represent and warrant to each of the Lenders that: SECTION 4.01. ORGANIZATION, POWERS, ETC. Each Borrower (i) is a corporation duly organized, validly existing and in good standing under laws of its state of incorporation, (ii) has the power and authority to own or hold under lease the properties it purports to own or hold under lease and to carry on its business as now conducted, (iii) is duly qualified or licensed to transact business in every jurisdiction in which such qualification or licensing is necessary to enable it to enforce all of its material contracts and other material rights and to avoid any material penalty or forfeiture. SECTION 4.02. AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, ETC. The Borrower has the power and authority to execute and deliver this Agreement, the Notes and the other Loan Documents and to perform all its obligations thereunder. The execution and delivery by each of the entities comprising the Borrower of this Agreement, the Notes and the other Loan Documents and the performance by the Borrower of all its obligations thereunder and any and all actions taken by the Borrower (i) have been duly authorized by all requisite corporate action, (ii) will not violate or be in conflict with (a) any provisions of law (including, without limitation, any applicable usury or similar law), (b) any order, rule, regulation, writ, judgment, injunction, decree or award of any court or other agency of government, or (c) any provision of its certificate of incorporation or by-laws, (iii) will not violate, be in conflict with, result in 30 a breach of or constitute (with or without the giving of notice or the passage of time or both) a default under any material indenture, agreement or other instrument to which it is a party or by which it or any of its properties or assets is or may be bound, and (iv) except as otherwise contemplated by this Agreement, will not result in the creation or imposition of any lien, charge or encumbrance upon, or any security interest in, any of its properties or assets. The Loan Documents constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally. SECTION 4.03. FINANCIAL STATEMENTS. The Borrower heretofore has provided to the Lenders (i) the consolidated balance sheet of the Company and its Subsidiaries as of November 30, 1993, and the related consolidated statements of earnings, stockholders' equity and cash flows for the 12-month period ended on that date, audited and reported upon by KPMG Peat Marwick, independent certified public accountants (the "Audited Financial Statements"), and (ii) a consolidated balance sheet of the Borrower as of May 31, 1994 and a consolidated statement of earnings of the Borrower for the six-month period ended on that date, both unaudited, but certified to be true and accurate (subject to normal year-end audit adjustments) by the President and the chief financial officer of the Company (the "Unaudited Financial Statements"). Those financial statements and reports (subject, in the case of the Unaudited Financial Statements, to normal year-end audit adjustments), and the related notes and schedules (if any), (a) were prepared in accordance with United States generally accepted accounting principles consistently applied throughout the respective periods covered thereby, (b) present fairly the consolidated financial condition of the Company and its Subsidiaries as of the respective dates thereof, (c) show all material liabilities, direct or contingent, of the Company and its Subsidiaries as of those dates (including, without limitation, liabilities for taxes and material commitments), and (d) present fairly the consolidated results of operations of the Company and its Subsidiaries for the respective periods covered thereby. SECTION 4.04. NO MATERIAL ADVERSE EFFECT. Since the date of the Audited Financial Statements, no Event has occurred which has had or could reasonably be expected to have a Material Adverse Effect. There are no material unrealized or expected losses in connection with loans, advances and other commitments of the Borrower. SECTION 4.05. TITLE TO PROPERTIES. Schedule IV hereto contains a complete and accurate list of all Real Estate owned by the Borrower, except those properties (i) acquired or disposed of by the Borrower after the date of the Audited Financial Statement in the ordinary course of business or (ii) the loss or forfeiture of which individu- 31 ally or in the aggregate would not have a Material Adverse Effect. The Borrower and its Subsidiaries have good and marketable fee title, or title insurable by a reputable and nationally recognized title insurance company, to the Real Estate owned by it listed in Schedule IV hereto, and to all the other assets owned by it and either reflected on the balance sheet and related notes and schedules most recently delivered by the Borrower to the Lenders (the "Recent Balance Sheet") or acquired by it after the date of that balance sheet and prior to the date hereof, except (x) for those properties and assets which have been disposed of since the date of that balance sheet or which no longer are used or useful in the conduct of its business and (y) that good and marketable fee title, or title insurable by a reputable and nationally recognized title insurance company, to the properties designated as "Arbor Lake," "Park View Apartments," "Oak Tree Apartments," and "Tree House Apartments" in Schedule IV and to certain of the properties located in Arizona listed in Schedule IV is held by the Persons and in the manner described in Schedule IV hereto. All such Real Estate and other assets owned by the Borrower (including the properties referred to in clause (y) above) are free and clear of all Mortgages, pledges, liens, charges and other encumbrances, except (i) in the case of Real Estate, as reflected on title insurance policies insuring the interest of the Borrower in the Real Estate or in title insurance binders issued with respect to the Real Estate (some of which title insurance binders have expired but were valid at the time of acquisition of the relevant Real Estate), (ii) as reflected in the Recent Balance Sheet, and none of those Mortgages, pledges, liens, charges or other encumbrances, individually or in the aggregate, prevents or has a Material Adverse Effect upon the use by the Borrower of any of their respective properties or assets as currently conducted or as planned for the future. SECTION 4.06. LITIGATION. There is no action, suit, proceeding, arbitration, inquiry or investigation (whether or not purportedly on behalf of the Borrower) pending or, to the best knowledge of the Borrower, threatened against or affecting the Borrower or any of the Subsidiaries which could reasonably be expected to have a Material Adverse Effect. The Borrower is not in default with respect to any final judgment, writ, injunction, decree, rule or regulation of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which default would or could have a Material Adverse Effect on the Borrower. The Borrower has no material contingent obligations not provided for or disclosed in the Unaudited Financial Statements. SECTION 4.07. PAYMENT OF TAXES. There have been filed all federal, state and local tax returns with respect to the operations of the Borrower which are required to be filed, including federal tax returns for the fiscal year ended November 30, 1993 and all prior fiscal years of the Borrower, except where extensions of time to make those filings have been granted by the appropriate taxing authorities and the extensions 32 have not expired. The Borrower has paid or caused to be paid to the appropriate taxing authorities all taxes as shown on those returns and on any assessment received by any of them, to the extent that those taxes have become due, except for taxes the failure to pay which do not violate the provisions of Section 6.03 hereof. The Internal Revenue Service has completed an examination of the Company's federal income tax returns for the years ended 1980 through 1988, and Borrower has paid all additional taxes, assessments, interest and penalties with respect to such years. SECTION 4.08. AGREEMENTS. Neither the Borrower nor any Subsidiary is a party to any agreement or instrument or is subject to any charter or other restriction that could reasonably be expected to have a Material Adverse Effect on it. Neither the Borrower nor any Subsidiary is in material default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to which it is a party and consummation of the transactions will not cause any Borrower to be in material default thereof. SECTION 4.09. FOREIGN DIRECT INVESTMENT REGULATIONS. Neither the making of the Advances nor the repayment thereof nor any other transaction contemplated hereby will involve or constitute a violation by the Borrower of any provision of the Foreign Direct Investment Regulations of the United States Department of Commerce or of any license, ruling, order, or direction of the Secretary of Commerce thereunder. SECTION 4.10. FEDERAL RESERVE REGULATIONS. (a) The Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U or Regulation X of the Board of Governors of the Federal Reserve System of the United States). Margin stock (as defined in Regulation U) constitutes less than 25% of those assets of the Borrower and its Subsidiaries which are subject to any limitation on sale, pledge, or other restriction hereunder. (b) No part of the proceeds of any of the Advances will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock. If requested by the Lenders, the Borrower shall furnish to the Lenders a statement in conformity with the requirements of Federal Reserve Form U-l referred to in Regulation U of said Board of Governors. No part of the proceeds of the Advances will be used for any purpose that violates, or which is inconsistent with, the provisions of Regulation X of said Board of Governors. 33 SECTION 4.11. CONSENTS, ETC. Except as set forth on Schedule V, no order, license, consent, approval, authorization of, or registration, declaration, recording or filing (except for the filing of a Current Report on Form 8-K, and a Quarterly Report on Form 10-Q, in each case with the Securities and Exchange Commission) with, or validation of, or exemption by, any governmental or public authority (whether federal, state or local, domestic or foreign) or any subdivision thereof is required in connection with, or as a condition precedent to, the due and valid execution, delivery and performance by Borrower of this Agreement, the Notes or the other Loan Documents, or the legality, validity, binding effect or enforceability of any of the respective terms, provisions or conditions thereof. To the extent that any franchises, licenses, certificates, authorizations, approvals or consents from any federal, state or local (domestic or foreign) government, commission, bureau or agency are required for the acquisition, ownership, operation or maintenance by the Borrower of properties now owned, operated or maintained by it, those franchises, licenses, certificates, authorizations, approvals and consents have been validly granted, are in full force and effect and constitute valid and sufficient authorization therefor. SECTION 4.12. COMPLIANCE WITH APPLICABLE LAWS. The Borrower and its Subsidiaries are in compliance with and conform to all statutes, laws, ordinances, rules, regulations, orders, restrictions and all other legal requirements of all domestic or foreign government or any instrumentality thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective properties, the violation of which would have a Material Adverse Effect on it, including, without limitation, regulations of the Board of Governors of the Federal Reserve System, the Federal Interstate Land Sales Full Disclosure Act and the Florida Land Sales Act. Neither the Borrower nor any Subsidiary has received any notice to the effect that its operations are not in material compliance with any of the requirements of applicable federal, state and local environmental, health and safety statutes and regulations or the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non-compliance or remedial action could reasonably be expected to have a Material Adverse Effect. SECTION 4.13. RELATIONSHIP OF THE BORROWER. The entities comprising the Borrower are engaged as an integrated group in the business of owning, developing and selling Real Estate and of providing the required services, credit and other facilities for those integrated operations. The Borrower requires financing on such a basis that funds can be made available from time to time to such entities, to the extent required for the continued successful operation of their integrated operations. The Advances to be made to the Borrower under this Agreement are for the purpose of financing the integrated operations of the Borrower, and each of the entities comprising the Borrower expects to 34 derive benefit, directly or indirectly, from the Advances, both individually and as a member of the integrated group, since the financial success of the operations of each Borrower is dependent upon the continued successful performance of the integrated group as a whole. SECTION 4.14. SUBSIDIARIES; JOINT VENTURES. Schedule VI hereto contains a complete and accurate list of (i) all Subsidiaries, including, with respect of each Subsidiary, (a) its state of incorporation, (b) all jurisdictions (if any) in which it is qualified as a foreign corporation, (c) the number of shares of its capital stock outstanding, and (d) the number and percentage of those shares owned by the Company and/or by any other Subsidiary, and (ii) each Unconsolidated Joint Venture, including, with respect to each such Unconsolidated Joint Venture, (a) its jurisdiction of organization, (b) all other jurisdictions in which it is qualified as a foreign entity and (c) all Persons other than the Borrower that are parties thereto. All the outstanding shares of capital stock of each Subsidiary are validly issued, fully paid and nonassessable, except as otherwise provided by state wage claim laws of general applicability. All of the outstanding shares of capital stock of each Subsidiary owned by the Borrower as specified in Schedule VI are owned free and clear of all liens, pledges, security interests, equity or other beneficial interests, charges and encumbrances of any kind whatsoever. None of the entities comprising the Borrower owns of record or beneficially any shares of the capital stock of any corporation (other than UAMC, LFC, AFSI, STI, TIC and the Limited Purpose Finance Subsidiaries) that is not a Borrower. SECTION 4.15. ERISA. The Borrower is not executing or delivering any of the Loan Documents or entering into any of the transactions contemplated hereby, directly or indirectly, in connection with any arrangement or understanding in any respect involving any "employee benefit plan" with respect to which the Borrower is a "party in interest" within the meaning of the Employee Retirement Income Security Act of 1974, or a "disqualified person", within the meaning of the Internal Revenue Code 1986, as amended. No Unfunded Liabilities exist with respect to any Single Employer Plans. Each Plan complies in all material respects with all applicable requirements of law and regulations, no Reportable Event has occurred with respect to any Plan, neither the Borrower nor any other members of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan. SECTION 4.16. INVESTMENT COMPANY ACT. Neither the Borrower nor any Subsidiary thereof is an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. 35 SECTION 4.17. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any Subsidiary is a "holding company" or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended. SECTION 4.18. SUBORDINATED DEBT. The Obligations constitute senior indebtedness which is entitled to the benefits of the subordination provisions of all outstanding Subordinated Debt. SECTION 4.19. POST-RETIREMENT BENEFITS. The present value of the expected cost of post-retirement medical and insurance benefits payable by the Borrower and its Subsidiaries to its employees and former employees, as estimated by the Borrower in accordance with procedures and assumptions deemed reasonable by the Required Lenders, does not exceed $ -0- . SECTION 4.20. INSURANCE. The certificate signed by the President or Chief Financial Officer of the Company, that attests to the existence and adequacy of, and summarizes, the property, casualty, and liability insurance programs carried by the Borrower and that has been furnished by the Borrower to the Agent and the Lenders, is complete and accurate. This summary includes the insurer's or insurers' name(s), policy number(s), expiration date(s), amount(s) of coverage, type(s) of coverage, exclusion(s), and deductibles. This summary also includes similar information, and describes any reserves, relating to any self-insurance program that is in effect. SECTION 4.21. ENVIRONMENTAL REPRESENTATIONS. To the best of the Borrower's knowledge and belief, no Hazardous Substances in violation of any Environmental Laws are present upon any of the Real Estate owned by Borrower or any Real Estate which is encumbered by any Mortgage held by Borrower, and the Borrower has not received any notice to the effect that any of the Real Estate owned by Borrower or any its operations are not in compliance with any of the requirements of applicable Environmental Laws or are the subject of any federal or state investigation evaluating whether any remedial organization is needed to respond to a release of any Hazardous Substance into the environment which, in either case, could be reasonably expected to have a Material Adverse Effect. SECTION 4.22. NO MISREPRESENTATION. No representation or warranty contained herein or made hereunder and no certificate, schedule, exhibit, report or other document provided or to be provided in connection with the transactions contemplated hereby (including, without limitation, the negotiation of and compliance with the Loan Documents) contains or will contain a misstatement of a material fact or omit to state a 36 material fact required to be stated therein in order to make the statements contained therein, in the light of the circumstances under which made, not misleading. ARTICLE V CONDITIONS PRECEDENT SECTION 5.01. CONDITIONS OF EFFECTIVENESS. This Agreement shall become effective when the Agent shall have received counterparts of this Agreement executed by the Borrower and each of the Lenders; PROVIDED, HOWEVER, that the Lenders shall not be required to make the initial Advance hereunder, unless and until the Agent shall have received each of the documents specified in subsections (a) - (j) below (with all documents required below, except as otherwise specified, to be dated the date of receipt thereof by the Agent, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Agent, and (except for the Notes) to be in sufficient copies for each Lender), and the conditions specified in subsections (k) and (l) below shall have been satisfied: (a) Estoppel letters from the Prior Lenders which set forth all amounts owed by the Borrower under the Existing Loans. (b) The Notes evidencing the Loans to be made hereunder. (c) The favorable written opinion by Mershon, Sawyer, Johnston, Dunwody & Cole, counsel for the Borrower, dated the Effective Date, addressed to the Lenders and in form and substance satisfactory to the Agent, (i) confirming the accuracy of the representations and warranties set forth in Sections 4.01 (excluding clause (ii) thereof, and limited, in the case of clause (iii) thereof, to the jurisdictions listed under the heading "Where Qualified" in Schedule VI hereto), 4.02, 4.06, 4.11, 4.12 and the second sentence of Section 4.08 hereof, (which opinion, as to the representations set forth in clauses (ii)(b), (iii) and (iv) of Section 4.02, Sections 4.06, 4.11, 4.12 and the second sentence of Section 4.08 hereof, may be to the best knowledge of such counsel, and may in its entirety be limited to Florida, Arizona, Delaware, Texas and United States federal law); and (ii) to the effect that this Agreement and the Notes have been duly authorized, executed and delivered by the Borrower. Such counsel may rely, in its opinion, on the opinions of special counsel to the Borrower referred to in Section 5.01(d) below, as to matters of law of the State of Illinois, and on the opinion of Fennemore, Craig of Phoenix, Arizona as to matters of law of the State of Arizona, and the opinion of Arter & Hadden as to matters of law of the State of Texas. The Borrow- 37 er hereby instructs its counsel to prepare its opinion and deliver it to Lenders for their benefit, and such opinion shall contain a statement to such effect. (d) The favorable written opinion of Rudnick & Wolfe, special counsel to the Borrower, that (i) no authorization, consent, approval, license or exemption of, or filing or registration with or other action by any Illinois, United States federal or Delaware governmental department, commission, board, bureau, regulatory body, agency or instrumentality or to the best knowledge of such counsel, any court is or will be necessary for the execution, delivery and performance by the Borrower of this Agreement and the Notes and (ii) this Agreement and the Notes constitute the legal, valid and binding obligations of the Borrower, enforceable in accordance with their respective terms, except as the rights and remedies of the Lenders thereunder may be limited by (A) applicable bankruptcy, reorganization, insolvency and other laws effecting creditors' rights generally from time to time in effect, (B) the exercise of the discretionary powers of the court before which any proceeding seeking equitable remedies (including, without limitation, specific performance and injunctive relief) may be brought, and (C) such other qualifications expressed in the opinion provided that such qualifications are acceptable to Agent. Such counsel may rely on the opinion of counsel to the Borrower delivered pursuant to subsection (c) above relating to the representations set forth in Sections 4.01 and 4.02 hereof. The Borrower hereby instructs its special counsel to prepare its opinion and deliver it to Lenders for their benefit, and such opinion shall contain a statement to such effect. (e) The favorable written opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., special counsel to the Agent and the Lenders, dated the Effective Date, addressed to the Lenders to the effect that: while it has not independently considered the matters covered by the opinions provided pursuant to Sections 5.01(c) and (d) to the extent necessary to enable it to express the conclusions stated therein, those opinions of counsel and the other documents provided pursuant to this Section 5.01 are substantially responsive to the requirements of this Agreement. (f) The following supporting documents with respect to each Borrower: (i) a copy of its certificate of incorporation, certified as of a date reasonably close to the Effective Date to be a true and accurate copy by the Secretary of State of its state of incorporation, or a certificate of its Secretary or Assistant Secretary to the effect that there have been no amendments to its certificate of incorporation since December 29, 1986; (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the effective Date, as to its existence and (if available) good standing; (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation, in which it does business, as to its qualification as a foreign corporation; (iv) a copy of its by-laws, certified by its Secretary or Assistant Secretary to be a true and accurate copy 38 of its by-laws in effect on the Effective Date; (v) a certificate of its Secretary or Assistant Secretary, dated the Effective Date, as to the incumbency and signatures of its officers who have executed any documents in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of the Executive Committee of its Board of Directors, certified by its Secretary or Assistant Secretary to be a true and accurate copy of resolutions duly adopted by such Executive Committee that are in full force and effect on the Effective Date, authorizing the execution and delivery by it of this Agreement, the Notes and the other Loan Documents and the performance by it of all its obligations thereunder; and (vii) such additional supporting documents and other information with respect to its operations and affairs as the Agent may reasonably request. (g) A certificate signed by a duly authorized officer of each Borrower stating that: (i) the representations and warranties of the Borrower contained in Article IV hereof are correct and accurate on and as of the date of that certificate as though made on and as of that date and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default hereunder. (h) A report from the Borrower with respect to all Income Producing Properties included in the calculation of the Borrowing Base that provides all such information as the Agent may require with respect to each such property, including, without limitation, the name, type and size (square feet, number of units or number of rooms, as applicable), the current leasing or occupancy status, the year-to-date average daily rate and year-to-date occupancy for each hotel property, and the operating cash flow (operating revenues less appropriate market rate management fees and all other operating expenses except depreciation and capital expenditures) for the most recently completed four fiscal quarters. (i) Written money transfer instructions, in substantially the form of Exhibit B hereto, signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may reasonably request. (j) Such other documents as any Lender or its counsel may reasonably request. (k) There shall not have occurred any changes in the consolidated financial condition or results of operations of the Borrower from that reflected in the financial statements dated May 31, 1994 which has or reasonably could be expected to have, in the judgment of the Required Lenders, a Material Adverse Effect on the Borrower's operations, taken as a whole. 39 (l) The Existing Loans shall have been simultaneously repaid in full from the proceeds of the initial Advance hereunder and the Prior Credit Agreement terminated in accordance with the terms thereof. SECTION 5.02. CONDITIONS PRECEDENT TO ALL BORROWINGS. (a) The Lenders shall not be required to make any Loan, unless on the applicable Borrowing Date: (i) the Agent shall have received notice of Borrower's request for the Advance with respect thereto as provided in Section 2.09(a) and such other approvals, opinions or documents as the Agent may reasonably request; and (ii) the representations and warranties of the Borrower contained in Article IV hereof are true and correct as of such Borrowing Date; PROVIDED, HOWEVER, that for the purposes hereof, (A) from and after the date of delivery by the Borrower pursuant to Section 6.04(a) of their consolidated financial statements for the year ended November 30, 1993, the references in Section 4.03 to "Audited Financial Statements" shall be deemed to be references to the annual audited financial statements most recently delivered by the Borrower pursuant to Section 6.04(a) as of the date of the request for an Advance and (B) from and after that date of delivery by the Borrower pursuant to Section 6.04(b) of its consolidated financial statements for the quarter ended May 31, 1994, the references in Section 4.03 to "Unaudited Financial Statements" shall be deemed to be references to the quarterly unaudited financial statements most recently delivered by the Borrower pursuant to Section 6.04(b) as of the date of that request for an Advance; and (iii) All legal matters incident to the making of such Advance shall be satisfactory to the Lenders and their counsel; and (iv) There exists no Event of Default or Unmatured Default; and (v) The making of the Advance will not cause the outstanding principal amount of the Notes to exceed the Borrowing Base, nor will the making of the Advance result in any Event of Default or Unmatured Default. (b) Each Borrowing Notice with respect to each such Advance shall constitute a representation and warranty by the Borrower that all of the conditions contained in Section 5.02 have been satisfied. 40 ARTICLE VI AFFIRMATIVE COVENANTS The Borrower covenants and agrees that from the date hereof until payment in full of all the Obligations, unless the Required Lenders otherwise shall consent in writing as provided in Section 13.06 hereof, the Borrower will, and will cause each of its Subsidiaries to: SECTION 6.01. EXISTENCE, PROPERTIES, ETC. Do or cause to be done all things or proceed with due diligence with any actions or courses of action which may be necessary to preserve and keep in full force and effect its existence under the laws of their respective states of incorporation and all qualifications or licenses in jurisdictions in which such qualification or licensing is required for the conduct of its business or in which the Lenders shall request such qualification; PROVIDED, HOWEVER, that nothing herein shall be deemed to prohibit any Borrower other than the Company from (i) merging into or consolidating with any other Borrower (including the Company, if the Company is the surviving entity) or (ii) declaring and paying dividends in complete liquidation. The Borrower will, and will cause each Subsidiary to, carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted. The primary business of the Borrower and the Subsidiaries shall at all times be the acquisition, development, management, rental and/or sale of real estate assets and/or the provision of financial services. SECTION 6.02. NOTICE. Give prompt written notice to the Agent of (i) any proceeding instituted by or against the Borrower or any of the Subsidiaries in any federal or state court or before any commission or other regulatory body, federal, state or local, or any such proceedings threatened against the Borrower in writing by any federal, state or other governmental agency, which, if adversely determined, could reasonably be expected to have a Material Adverse Effect on the Borrower, and (ii) any other Event which may lead to or result in a Material Adverse Effect on the Borrower, or which, with or without the giving of notice or the passage of time or both, would constitute an Event of Default or a default under any material agreement other than this Agreement to which the Borrower is a party or by which any of its properties or assets is or may be bound. SECTION 6.03. PAYMENTS OF DEBTS, TAXES, ETC. Pay all its debts and perform all its obligations promptly and in accordance with the respective terms thereof, and pay and discharge or cause to be paid and discharged promptly all taxes, assessments and 41 governmental charges or levies imposed upon the Borrower or upon its incomes or receipts or upon any of its properties before the same shall become in default or past due, as well as all lawful claims for labor, materials and supplies or otherwise which, if unpaid, might result in the imposition of a lien or charge upon such properties or any part thereof; PROVIDED, HOWEVER, that it shall not constitute a violation of the provisions of this Section 6.03 if the Borrower shall fail to perform any such obligation or to pay any such debt (except for obligations for money borrowed), tax, assessment, governmental charge or levy or claim for labor, materials or supplies which is being contested in good faith, by proper proceedings diligently pursued, and as to which adequate reserves have been provided. SECTION 6.04. ACCOUNTS AND REPORTS. Maintain a standard system of accounting established and administered in accordance with Agreement Accounting Principles, and provide to the Lenders the following: (a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1994), a consolidated balance sheet of the Company and its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, stockholders' equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with United States generally accepted accounting principles consistently applied and audited and reported upon by KPMG Peat Marwick or another firm of independent certified public accountants of recognized standing selected by the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in United States generally accepted principles of accounts and required or approved by the Borrower's independent certified public accountants); (b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter ending August 31, 1994), a consolidated balance sheet of the Company and its Subsidiaries as of the end of that quarter, and the related consolidated statement of earnings of the Company and its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with United States generally accepted accounting principles consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the chief financial officer of the Company; (c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter ending August 31, 1994), (i) a consolidating balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the 42 related consolidating statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter, and (ii) a consolidating balance sheet of LFSI (in a form acceptable to the Agent) as of the end of that quarter and the related consolidating statement of earnings of LFSI (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with United States generally accepted accounting principles consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the chief financial officer of the Company; (d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the chief financial officer of the Company to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; (e) within 30 days after the end of each calendar month (commencing with the month ending July 31, 1994), a report, in reasonable detail and in form and substance satisfactory to the Agent, setting forth, as of the end of the month, with respect to each Project owned by the Company and its Subsidiaries, (i) the number of Housing Unit Closings, (ii) the number of Housing Units either completed or under construction, specifying the number thereof that are Completed Housing Units, (iii) the number of Housing Units Under Contract; (f) within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1994), (i) a schedule of all Real Estate owned by the Borrower in the form of Schedule IV annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule IV, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require, (ii) a schedule listing each Mortgage Receivable held by the Borrower having an outstanding principal balance exceeding $100,000 as of the end of that fiscal year, setting forth, in reasonable detail and in form and substance 43 satisfactory to the Agent, with respect to each such Mortgage Receivable, (A) the name and address of the Debtor, (B) a description of the Real Estate encumbered by the Mortgage granted as security therefor, (C) the original sales price of the Real Estate, (D) the original principal amount of the receivable, (E) the terms of payment of, and the interest payable on, the receivable and (F) the outstanding principal balance thereof and the accrued and unpaid interest thereon as of the end of that fiscal year; and (iii) a report, in form and substance reasonably acceptable to Agent, with respect to all Income Producing Properties included in the calculation of the Borrowing Base that provides all such information as the Agent may require with respect to each such property, including, without limitation, the name, type and size (square feet, number of units or number of rooms, as applicable) of the property, the year-to-date average daily rate and year-to-date occupancy for each hotel property, leasing or occupancy reports for such fiscal year, and operating reports for such fiscal year; (g) within 90 days after the beginning of each fiscal year of the Borrower (commencing with the fiscal year beginning December 1, 1994), a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Company and its Subsidiaries for that fiscal year and for the immediately succeeding fiscal year; (h) promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by the Borrower to its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by the Borrower with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of the Borrower and which does not relate to or disclose any Material Adverse Effect to the affairs of the Borrower; (i) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Unconsolidated Joint Venture, a balance sheet of that Unconsolidated Joint Venture as of the end of that quarter and a statement of earnings of that Unconsolidated Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with United States generally accepted accounting principles consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the chief financial officer of the Company; 44 (j) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter ending August 31, 1994), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, if the Borrower shall have been required to provide Collateral, Article VIII of this Agreement. Without limiting the generality of the foregoing, Borrower shall provide to the Lenders (i) a report calculating the Borrowing Base in form and substance satisfactory to Agent, in which report the Borrower shall include (a) a report of all accounts receivable from the sales of Housing Units included in the Borrowing Base, showing all such receivables which remain uncollected on the tenth (10th) day after the end of the quarter or fiscal year, as the case may be, and (b) a general description of all Income Producing Properties included in the calculation of the Borrowing Base and with respect to each of such properties the Net Book Value and the Net Operating Income for the most recently completed four fiscal quarters, and (ii) a report containing the calculations necessary to indicate that the Borrower is in compliance with the provisions of Sections 6.10 and 7.14, including a certification of the outstanding principal amount of all loans and advances made by the Company to each of the Mortgage Banking Subsidiaries, as the case may be, and that all such loans and advances are duly evidenced by the Mortgage Banking Subsidiaries Note in the possession of Agent. The reports furnished pursuant to this subsection (j) shall be certified to be true and correct by the Chief Financial Officer of the Company and shall also contain a representation and warranty by the Borrower that it is in full compliance with the provisions of Article VII and, if applicable, Article VIII of this Agreement; (k) within 270 days after the close of each fiscal year, a statement of the Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA, but the foregoing statement shall be required only if any Single Employer Plan shall exist; (l) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (m) as soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by the Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Company or any 45 of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect; (n) promptly upon the request of the Agent or any Lender, an accurate legal description with respect to any Real Estate (including, without limitation, all Income Producing Property) included in the calculation of the Borrowing Base; (o) promptly upon the request of the Agent or any Lender, quarterly operating statements for any Income Producing Property included in the calculation of the Borrowing Base; and (p) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require. SECTION 6.05. ACCESS TO PREMISES AND RECORDS. At all reasonable times and as often as any Lender may reasonably request, permit authorized representatives and agents designated by that Lender to (i) have access to the premises of the Borrower and each Subsidiary and to their respective corporate books and financial records, and all other records relating to their respective operations and procedures, (ii) make copies of or excerpts from those books and records and (iii) upon reasonable notice to the Company, discuss the respective affairs, finances and operations of the Borrower and its Subsidiaries with, and to be advised as to the same by, their respective officers and directors. SECTION 6.06. MAINTENANCE OF PROPERTIES AND INSURANCE. Maintain all its properties and assets in good working order and condition and make all necessary repairs, renewals and replacements thereof so that its business carried on in connection therewith may be properly conducted at all times; and maintain or require to be maintained (i) adequate insurance, by financially sound and reputable insurers, on all properties of the Borrower which are of character usually insured by Persons engaged in the same or a similar business (including, without limitation, all Real Estate encumbered by Mortgages securing mortgage loans made by the Borrower, to the extent normally required by prudent mortgagees, and all Real Estate which is subject of an Equity Investment by the Borrower, to the extent normally carried by prudent builder-developers) against loss or damage resulting from fire, defects in title or other risks insured against by extended coverage and of the kind customarily insured against by those Persons, (ii) adequate public liability insurance against tort claims which may be incurred by the Borrower, and (iii) such other insurance as may be required by law. Upon the request of the Agent, the Borrower will furnish to the Lenders full information as to the insurance carried. Notwithstanding the foregoing provisions of this Section 6.06, 46 Borrower shall be permitted to self-insure against all property and casualty risks associated with its construction of single-family dwelling units up to a maximum aggregate exposure not to exceed at any time 25% of Tangible Net Worth. SECTION 6.07. FINANCING; NEW INVESTMENTS. Give the Agent (i) written notice of any serious negotiations for debt or equity financing or for the placement of the Borrower's Securities in either a private or public financing, if any of the foregoing transactions are to be in excess of $1,000,000 in any one transaction or series of related transactions, (ii) advance written notice of the formation of any new Significant Subsidiary (as hereinafter defined), the establishment of any new joint venture or the commencement of any new project or work-out involving Real Estate not owned by the Borrower as of the Effective Date, which such new Significant Subsidiary shall forthwith become a party to this Agreement as a Borrower hereunder, and (iii) written notice of the formation of any new Subsidiary which is not a Significant Subsidiary given not later than ten (10) days after such formation; PROVIDED, HOWEVER, that nothing in this Section 6.07 shall be deemed to authorize the Borrower to enter into any such transaction if the same would violate any of the limitations set forth in Article VII hereof. As used in this Section 6.07, the term "Significant Subsidiary" means a Significant Subsidiary as such term is defined in Section 1-02(v) of Regulation S-X promulgated by the Securities and Exchange Commission. SECTION 6.08. COMPLIANCE WITH APPLICABLE LAWS. Promptly and fully comply with, conform to and obey all present and future laws, ordinances, rules, regulations, orders, writs, judgments, injunctions, decrees, awards and all other legal requirements applicable to the Borrower, its Subsidiaries and their respective properties, including Regulation Z of the Board of Governors of the Federal Reserve System, the Federal Interstate Land Sales Full Disclosure Act and the Florida Land Sales Act, the violation of which would have a Material Adverse Effect on the Borrower. SECTION 6.09. CHANGE IN COLLATERAL. Give the Agent immediate notice of any material change in the status of any of the Collateral which may be required hereunder. SECTION 6.10. ADVANCES TO THE MORTGAGE BANKING SUBSIDIARIES. Cause the Mortgage Banking Subsidiaries to execute and deliver the Mortgage Banking Subsidiaries Note in order to evidence all loans and advances that now exist or are hereafter made by the Company to any of the Mortgage Banking Subsidiaries, respectively; deposit the original Mortgage Banking Subsidiaries Note with Agent; and obtain, prior to or contemporaneously with the execution of this Agreement, written acknowledgments from each Mortgage Banking Subsidiary that the aggregate of all loans and advances hereafter made by the Company to such Mortgage Banking Subsidiary shall be 47 evidenced and governed by the Mortgage Banking Subsidiaries Note held by Agent. At all times the principal amount of the Mortgage Banking Subsidiaries Note held by Agent must equal or exceed the aggregate principal amount of all loans and advances made by the Company to Mortgage Banking Subsidiaries, and upon the request of Agent (but no more frequently than monthly), the Company shall obtain and deliver to the Agent specific written acknowledgments from each of the Mortgage Banking Subsidiaries to the effect that loans and advances theretofore made by the Company to the Mortgage Banking Subsidiaries are evidenced by the Mortgage Banking Subsidiaries Note. In the event that after the Effective Date the Borrower organizes or acquires any Mortgage Banking Subsidiary, such Mortgage Banking Subsidiary shall, upon such organization or acquisition, join in and become a maker of a replacement Mortgage Banking Subsidiaries Note, such new Mortgage Banking Subsidiaries Note shall be deposited with the Agent pursuant to this Section 6.10, and all references in this Agreement to Mortgage Banking Subsidiaries shall thereafter be deemed references to all such Mortgage Banking Subsidiaries. SECTION 6.11. USE OF PROCEEDS. Use the proceeds of the Advances for working capital and general corporate purposes and to finance acquisitions, and use the initial Advance to repay the amounts outstanding under the Existing Loans. ARTICLE VII NEGATIVE COVENANTS The Borrower covenants and agrees that from the date hereof until payment in full of all the Obligations, unless the Lenders otherwise shall consent in writing as provided in Section 13.06 hereof, Borrower will not, either directly or indirectly: SECTION 7.01. TANGIBLE NET WORTH. Permit the consolidated Tangible Net Worth of the Borrower at any time to be less than the sum of (a) $370,000,000, and (b) an amount equal to 50% of the result obtained by subtracting the after tax net income of the Mortgage Banking Subsidiaries, the Limited Purpose Finance Subsidiaries, STI and TIC from the aggregate net income of the Company and its Subsidiaries, for each fiscal quarter of the Company ending after February 28, 1994 for which the Company and its Subsidiaries, taken as a whole, had net income, and (c) the aggregate net proceeds received by the Borrower after the Effective Date from the sale of any of its equity Securities. SECTION 7.02. RATIO OF LIABILITIES TO TANGIBLE NET WORTH. Permit the consolidated Liabilities of the Borrower less the Liabilities of the Mortgage Banking 48 Subsidiaries, the Limited Purpose Finance Subsidiaries, STI and TIC, as shown on the Company's consolidated financial statements, at any time to exceed 200% of the result obtained by subtracting all of the investments and advances of the Borrower to unconsolidated joint ventures from the consolidated Tangible Net Worth of the Borrower. SECTION 7.03. GUARANTIES. Make or suffer to exist any Contingent Obligation (including, without limitation, any Contingent Obligation with respect to the obligations of a Subsidiary or joint venture) or otherwise assume, guarantee or in any way become contingently liable or responsible for obligations of any other Person, whether by agreement to purchase those obligations of any other Person, or by agreement for the furnishing of funds through the purchase of goods, supplies or services (whether by way of stock purchase, capital contribution, advance or loan) for the purpose of paying or discharging the obligations of any other Person, except for: (a) guaranties of obligations of another Borrower issued in the ordinary course of business; (b) the endorsement of negotiable instruments in the ordinary course of business; (c) guaranties of performance and completion and performance and completion bonds issued in connection with the construction of Real Estate developments owned by the Borrower; (d) guaranties of liabilities incurred by Unconsolidated Joint Ventures to which the Borrower is a party, PROVIDED that all such guaranties outstanding at any one time, when aggregated with all then outstanding investments in and loans or advances to Unconsolidated Joint Ventures of the type referred to in clause (i) of Section 7.05 hereof, do not exceed $50,000,000 for any single Unconsolidated Joint Venture or $150,000,000 for all Unconsolidated Joint Ventures. None of the foregoing clauses, however, shall be deemed to permit the Borrower to guaranty any obligations of the Mortgage Banking Subsidiaries, Limited Purpose Finance Subsidiaries, STI or TIC. SECTION 7.04. SALE OF ASSETS; ACQUISITIONS; MERGER. (a) Do either of the following: (i) sell any single asset with a book value of $5,000,000 or more for a sales price which is less than the book value of that asset, or (ii) sell any single asset with a book value of $10,000,000 or more; PROVIDED, HOWEVER, that in no event shall the aggregate sales price of all assets sold or disposed of by the Borrower, other than those sold in the ordinary course of business, exceed $25,000,000 in any single calendar year. (b) Do any of the following: (i) sell, assign, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Company and the Subsidiaries (on a 49 consolidated basis) except for the sale of inventory in the ordinary course of business; (ii) merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; or (iii) dissolve, liquidate or wind up its business by operation of law or otherwise; PROVIDED, HOWEVER, that any Subsidiary or any other Person may merge into or consolidate with or may dissolve and liquidate into any Borrower, if (and only if), (1) in the case of a merger or consolidation, a Borrower is the surviving Person, (2) in the case of a merger or consolidation involving the Company, the Company is the surviving Person, (3) the character of the business of the Company and the Subsidiaries on a consolidated basis will not be materially changed by such occurrence, and (4) such occurrence shall not constitute or give rise to an Event of Default or Unmatured Default or a default in respect of any of the covenants contained in any agreement to which the Company or such Subsidiary is a party or by which its property may be bound. (c) Acquire another company unless such company is involved in the acquisition, development, management, rental and/or sale of real estate assets and/or the provision of financial services as its primary business. Nothing contained in this Section 7.04, however, shall restrict any sale of assets between the entities comprising the Borrower which is in compliance with all other provisions of this Agreement. SECTION 7.05. INVESTMENTS. Purchase or otherwise acquire, hold or invest in the Securities (whether capital stock or instruments evidencing debt) of, make loans or advances to, enter into any arrangements for the purpose of providing funds or credit to, or make any Equity Investment in, any Person which is not either a Borrower on the Effective Date or a Subsidiary which becomes a Borrower upon the making of the investment, except for: (i) investments in or loans or advances to Unconsolidated Joint Ventures to which the Borrower is a party, PROVIDED that all such investments, loans and advances outstanding at any time, when aggregated with all then outstanding guaranties of the obligations of Unconsolidated Joint Ventures of the type referred to in clause (d) of Section 7.03 hereof do not exceed $50,000,000 for any single Unconsolidated Joint Venture or $150,000,000 in the aggregate for all Unconsolidated Joint Ventures; (ii) advances to or investments in the Mortgage Banking Subsidiaries or the Limited Purpose Finance Subsidiaries outstanding at any time not exceeding $150,000,000 in the aggregate; (iii) advances to or investments in STI and TIC outstanding at any time not 50 exceeding $10,000,000 in the aggregate; and (iv)(A) purchases of direct obligations of the government of the United States of America, or any agency thereof, or obligations unconditionally guaranteed by the United States of America; (B) certificates of deposit of any bank organized or licensed to conduct a banking business under the laws of the United States or any state thereof having capital, surplus and undivided profits of not less than $100,000,000; (C) investments in commercial paper which, at the time of acquisition by the Borrower, is accorded an "A" or equivalent rating by Standard & Poor's, Moody's or any other nationally recognized credit rating agency of similar standing; and (D) investments in publicly traded, readily marketable securities, traded on a recognized national exchange or over-the-counter, PROVIDED, HOWEVER, that no more than an aggregate of $15,000,000, (excluding investments in Sunrise Lakes Phase I Bonds, Coupon at 7 1/2%, Aggregate face value $4,215,000) may be invested in such securities. SECTION 7.06. DISPOSITION, ENCUMBRANCE OR ISSUANCE OF CERTAIN STOCK. Sell, transfer or otherwise dispose of, or pledge, grant a security interest, equity interest or other beneficial interest in or otherwise encumber any of the outstanding shares of capital stock of any Mortgage Banking Subsidiary, or permit any Mortgage Banking Subsidiary to sell, issue or otherwise transfer any shares of its capital stock to any Person other than the Borrower. SECTION 7.07. SUBORDINATED DEBT. Directly or indirectly make any payment of principal or interest with respect to any Subordinated Debt prior to the date the same is due, or amend or modify the terms of any Subordinated Debt except for extensions of the due date thereof, or directly or indirectly redeem, retire, defease, purchase, retire or otherwise acquire any Subordinated Debt. SECTION 7.08. HOUSING UNIT. Permit the total number of Housing Units owned by the Borrower, including Housing Units under construction but excluding model housing units and Housing Units Under Contract, at any time to exceed the greater of (i) 50% of the total number of Housing Unit Closings during the immediately preceding 12-month period, or (ii) 110% of the total number of Housing Unit Closings during the immediately preceding six-month period. SECTION 7.09. CONSTRUCTION IN PROGRESS. Cause, suffer or permit to exist any Mortgage, security interest or other encumbrance to secure Indebtedness on any Housing Unit or other building or structure (including, without limitation, any asset reported as "Construction in Progress" in the financial statements of the Borrower, but excluding any Income Producing Property and any part thereof) that is under construction on any land owned or leased by the Borrower; PROVIDED, HOWEVER, that the Borrower may cause, suffer or permit to exist purchase money Mortgages having an 51 aggregate outstanding principal balance not exceeding $10,000,000 at any time on assets so reported as "Construction in Progress". SECTION 7.10. BORROWING BASE. Permit the aggregate outstanding principal amount of all unsecured Indebtedness of the Borrower (including, without limitation, the outstanding principal amount of the Notes, regardless of whether the Notes are unsecured or have been collateralized pursuant to Article VIII below) at any time to exceed the Borrowing Base. SECTION 7.11. NO MARGIN STOCK. Use any of the proceeds of the Advances to purchase or carry any "margin stock" (as defined in Regulation U). SECTION 7.12. MORTGAGE BANKING SUBSIDIARIES' CAPITAL RATIO. Permit the "Mortgage Banking Subsidiaries' Capital Ratio" to exceed, at any time, eight (8) to one (1). As used in this Section 7.12, the term "Mortgage Banking Subsidiaries' Capital Ratio" shall mean the ratio of the combined total indebtedness of the Mortgage Banking Subsidiaries to Adjusted Net Worth (as defined in Section 7.15 below). SECTION 7.13. TRANSACTIONS WITH AFFILIATES. Will not enter into any transaction (including, without limitation, the purchase or sale of any property or service) with, or make any payment or transfer to, any Affiliate except in the ordinary course of business and pursuant to the reasonable requirements of the Borrower's or a Subsidiary's business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction. SECTION 7.14. RESTRICTIONS ON ADVANCES TO MORTGAGE BANKING SUBSIDIARIES. Will not (i) permit any loan or advance to be made by the Borrower to a Mortgage Banking Subsidiary except for loans and advances from the Company to the Mortgage Banking Subsidiaries which are made under, and evidenced by, the Mortgage Banking Subsidiaries Note that is in the possession of Agent and for which the Company shall have obtained a written acknowledgment from each Mortgage Banking Subsidiary that the same are evidenced and governed by the Mortgage Banking Subsidiaries Note; (ii) permit the aggregate amount of all loans and advances made by the Company to any Mortgage Banking Subsidiary outstanding at any time to exceed the sum of (a) the aggregate principal amount of all mortgage loans held for sale by such Mortgage Banking Subsidiary, less the aggregate principal amount of all promissory notes payable by such Mortgage Banking Subsidiary to banks or other lenders, and less the aggregate principal amount of all mortgage loans held for sale by such Mortgage Banking Subsidiaries which are pledged, assigned or otherwise encumbered, to the extent that said aggregate amount exceeds the aggregate principal amount of notes payable by such 52 Mortgage Banking Subsidiary to banks or other lenders, and (b) 1.5% of the principal amount of all mortgages serviced by such Mortgage Banking Subsidiary, less any loans or other financing to such Mortgage Banking Subsidiary associated with the servicing portfolio (exclusive of those amounts deducted in the calculation required under clause (a) above) if, and to the extent that, the servicing rights with respect to such mortgages are not subject to any Lien; (iii) assign, transfer, pledge, hypothecate or encumber in any way the Mortgage Banking Subsidiaries Note, any interest therein or any sums due or to become due thereunder; (iv) modify, amend, extend or in any way change the terms of the Mortgage Banking Subsidiaries Note; (v) make any principal advances to any Mortgage Banking Subsidiary, under the Mortgage Banking Subsidiaries Note or otherwise, at any time after the Agent has been granted a security interest in the Mortgage Banking Subsidiaries Note except to the extent of any principal prepayments under the Mortgage Banking Subsidiaries Note in excess of the mandatory principal payments required thereunder; or (vi) permit a Mortgage Banking Subsidiary to enter into any agreement or agreements which (a) in any way restrict the payment of dividends by such Mortgage Banking Subsidiary or (b) individually or in the aggregate impose any restriction on the repayment of any indebtedness of a Mortgage Banking Subsidiary to any Person (including, without limitation, the indebtedness payable under the Mortgage Banking Subsidiaries Note) other than a restriction on the payment of the last $5,000,000 of principal indebtedness of UAMC (i.e., such permitted restriction shall be applicable only after the aggregate principal amount of indebtedness owed by UAMC to any Person shall be less than or equal to $5,000,000). SECTION 7.15. ADJUSTED NET WORTH OF MORTGAGE BANKING SUBSIDIARIES. Permit the Adjusted Net Worth of the Mortgage Banking Subsidiaries at any time to be less than $40,000,000. For purposes of this Section 7.15, the term "Adjusted Net Worth" shall mean the combined net worth of the Mortgage Banking Subsidiaries as computed in accordance with United States generally accepted accounting principles reduced by the amount of intangibles of the Mortgage Banking Subsidiaries (such as goodwill, purchased servicing, excess servicing, trademarks), plus two and one-half (2-1/2) times the combined Mortgage Banking Subsidiaries annualized gross servicing revenue (including service fees, late fees and other ancillary servicing fees). If and when the Mortgage Banking Subsidiaries cannot maintain Adjusted Net Worth of $40,000,000 as a result of acquiring servicing, the above computation of Adjusted Net Worth shall be modified to provide for a multiple of three (3) times annualized gross servicing revenue (as defined above). 53 ARTICLE VIII COLLATERAL SECTION 8.01. SECURITY FOR OBLIGATIONS. Upon the request of the Agent (which may not be made without the prior written or telegraphic consent from the Required Lenders and which shall be made upon the written or telegraphic request of the Required Lenders), the Borrower shall grant the Agent, on behalf of the Lenders, as security for the payment in full of all the Obligations, (i) First Mortgages on Real Estate owned by the Borrower and selected by the Agent having an aggregate Collateral Value not less than the Revolving Collateral Value, and (ii) a first lien and security interest in the Mortgage Banking Subsidiaries Note; PROVIDED, HOWEVER, that in no event shall the Agent request a security interest in the Mortgage Banking Subsidiaries Note under clause (ii) above prior to requesting the First Mortgages under clause (i) above. Notwithstanding anything to the contrary provided in this Agreement, the Borrower agrees that the security agreement relating to the Mortgage Banking Subsidiaries Note shall require all principal payments payable under the Mortgage Banking Subsidiaries Note to be made directly to the Agent and applied to the principal outstanding under the Notes as required under Section 2.04. The Appraised Value of all Real Estate so selected by the Agent shall be determined by an independent MAI appraiser selected by the Agent as of a date reasonably close to the date the particular Collateral is required to be delivered to Agent pursuant to an appraisal which has been reviewed and approved by the Agent. In selecting any appraiser and reviewing any appraisal, the Agent shall follow the same procedures as used in connection with loans held by the Agent for its own account, and the Agent agrees to communicate and, as appropriate, consult with the Lenders in connection therewith. Notwithstanding such communication and consultation, the final determination of the Agent shall govern and control. To the extent that, in its review of any appraisal, the Agent determines that any clarifications or corrections are necessary, the Agent shall communicate its comments to the appraiser and require the appraiser to revise or supplement its appraisal report, as appropriate. Currently, the selection of appraisers and review of appraisals by the Agent is performed by the Real Estate Valuation Services Unit of the Agent and appraisals are reviewed to determine compliance with the appraisal requirements of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 and the regulations promulgated thereunder. However, the department or unit of the Agent selecting appraisers and reviewing appraisals and the nature of the review of appraisals is subject to change. SECTION 8.02. COLLATERAL VALUE. (a) From the date that the Agent requests collateralization pursuant to Section 8.01 hereof until payment in full of all the Obligations, the Borrower at all times shall 54 cause the Obligations to be secured by Mortgages on or security interests in Collateral that has an aggregate Collateral Value not less than the Revolving Collateral Value. (b) The Agent shall have the right (which it may exercise at any time it deems appropriate, but which it in any event shall exercise at the written request of the Required Lenders), not more than once during each 12-month period following the Effective Date, to retain one or more independent MAI appraisers to determine the Appraised Value of all Real Estate owned by the Borrower that is part of the Collateral. (c) If, as a result of those appraisals or any principal payment made with respect to one or more Mortgage Receivables that is part of the Collateral, the Agent shall determine that the aggregate Collateral Value of all the Collateral is less than the Revolving Collateral Value, the Agent shall so advise the Borrower in writing and the Borrower shall, promptly (and in any event within 30 days) after receipt of that notice, grant the agent, as security for the payment in full of all the Obligations, First Mortgages on Real Estate owned by the Borrower and selected by the Agent having an aggregate Collateral Value sufficient to remedy the deficiency. In the event that the Agent fails to take any of the actions required in this subsection (c), the Required Lenders shall have the right to take such actions. SECTION 8.03. RELEASES. (a) Each Mortgage executed and delivered by the Borrower to the Agent hereunder shall provide that, so long as no Event of Default or any Unmatured Default shall have occurred and be continuing, the Agent shall execute and deliver to the Borrower a release of the lien of the Mortgage from all or any part of the Real Estate subject thereto upon (i) the sale of the Real Estate to be released either for (a) cash in an amount not less than 100% of the Appraised Value of the Real Estate, PROVIDED that the cash proceeds of the sale are applied to the prepayment of the Notes to the extent (if any) required by Section 2.04 hereof, or (b) a cash downpayment and a Mortgage Receivable in an aggregate amount equal to 100% of the Appraised Value of the Real Estate, PROVIDED that the cash downpayment is applied to the prepayment of the Notes to the extent (if any) required by Section 2.04 hereof and the Mortgage Receivable is assigned to the Agent as additional security for the payment in full of the Obligations, and (ii) the Borrower's granting to the Agent, on or before the date of the release, First Mortgages on Real Estate owned by the Borrower and selected by the Agent having an aggregate Collateral Value not less than the Collateral Value of the released Collateral. (b) So long as no Event of Default or Unmatured Default shall have occurred and be continuing, the Agent shall deliver to the appropriate Borrower a duly executed assignment of each Mortgage Receivable assigned to the Agent as security for the Obligations, together with the relevant promissory note and Mortgage documents, at 55 such time as, pursuant to the proviso to Section 2.04, the Borrower no longer is required to apply the proceeds of principal payments made under the Mortgage Receivable to the payment of the principal of the Notes. SECTION 8.04. SUBSTITUTE OR ADDITIONAL COLLATERAL. Anything in Section 8.01, Section 8.02 or Section 8.03 hereof to the contrary notwithstanding, in any instance that the Borrower is required, pursuant to one of those Sections, to grant the Agent First Mortgages on Real Estate owned by the Borrower and selected by the Agent, the Borrower may, subject to the consent of the Required Lenders (which may be granted or denied in their sole and absolute discretion), grant the Agent, in lieu of or in addition to those First Mortgages, a security interest in Mortgage Receivables owned by the Borrower and selected by the Agent, and/or Junior Mortgages of highest available priority on Real Estate owned by the Borrower and selected by the Agent (with the approval of the Required Lenders), having an aggregate Collateral Value sufficient to satisfy the requirements of the relevant Section. SECTION 8.05. COLLATERAL DOCUMENTATION. In each instance that the Borrower is required to grant the Agent a Mortgage on or security interest in one of its assets pursuant to any of the foregoing provisions of this Article VIII, the Borrower shall deliver to the Agent the following documentation: (a) If the asset is Real Estate: (i) a duly executed and acknowledged instrument, in form and substance satisfactory to the Agent, granting the Agent, on behalf of the Lenders, a First Mortgage or Junior Mortgage, as the case may be, on the Real Estate; (ii) a mortgagee's title insurance policy, issued by a substantial and reputable title insurance company satisfactory to the Agent, insuring the lien of the Mortgage and listing the Agent as the insured party and containing such endorsements as shall be requested by the Agent; (iii) a phase I environmental report issued in favor of the Agent by an environmental engineering firm which is fully satisfactory to the Agent indicating the that property is free from all hazardous substances and environmental concerns; and (iv) such other documentation as the Agent may reasonably request (including, without limitation, an Assignment of Leases, Rents and Profits, UCC-1 Financing Statements, collateral assignments of agreements relating to the relevant property, a survey of the property, and insurance certificates naming the Agent under a mortgagee endorsement which is acceptable to Agent). 56 (b) If the asset is a Mortgage Receivable: (i) a duly executed and acknowledged assignment, in form and substance satisfactory to the Agent, of such Mortgage Receivable to the Agent on behalf of the Lenders; (ii) the original promissory note (duly endorsed to the Agent, on behalf of the Lenders) and the original Mortgage documents; (iii) either (x) an existing title insurance policy insuring the lien of the Mortgage and listing the Borrower as the insured party, together with an endorsement thereof to the Agent, or (y) a mortgagee's title insurance policy, issued by a substantial and reputable title insurance company satisfactory to the Agent, insuring the lien of the Mortgage and listing the Agent as insured party; (iv) an opinion of counsel to the Borrower, dated the date of execution and delivery of the assignment and addressed to the Lenders, to the effect that, subject to due compliance with the recording and/or filing requirements of applicable law, the Agent has a valid and perfected security interest in the Mortgage Receivable. The Borrower shall instruct its counsel to prepare its opinion and deliver it to Lenders for their benefit, and such opinion shall contain a statement to such effect; (v) a phase I environmental report issued in favor of the Agent by an environmental engineering firm which is fully satisfactory to the Agent indicating that the property is free from all hazardous substances and environmental concerns; and (vi) such additional documentation as the Agent may reasonably request. (c) If the asset is the Mortgage Banking Subsidiaries Note: (i) a duly executed pledge and security agreement, in form and substance satisfactory to Agent, granting the Agent on behalf of the Lenders, a first lien on, and security interest in, the Mortgage Banking Subsidiaries Note; (ii) an endorsement or allonge to the Mortgage Banking Subsidiaries Note, in form and substance satisfactory to Agent, transferring the Mortgage Banking Subsidiaries Note to Agent on behalf of the Lenders; and (iii) a written acknowledgment from the Company that the Agent holds the Mortgage Banking Subsidiaries Note as Collateral for the Obligations. 57 (d) If the asset is unrestricted cash and/or Net Proceeds referred to in clauses (i) or (ii) of the definition of "Borrowing Base" in Section 2.01, the Borrower shall execute and deliver to the Agent such collateral assignments, security agreements, cash collateral agreements and financing statements in respect thereof as shall be requested by the Agent from time to time. All the foregoing documents shall be delivered to the Agent on or before the date that the Borrower is required to grant the Agent the relevant Mortgage or security interest, except that the items specified in clauses (a)(ii) and (b)(iii) above shall be delivered to the Agent as soon as available, but in no event more than 30 days after the date of recording of the relevant Mortgage or assignment. All of the documentation and other items required under this Section 8.05 must be fully satisfactory, both in form and substance, to the Agent. In addition to the foregoing, the Borrower shall, at the request of the Agent, execute and deliver to the Agent such assignments, pledges, deeds, Mortgages, financing statements and other documents, and cause to be done such further acts, all as the Agent from time to time may deem necessary or appropriate to evidence, confirm, perfect or protect any Mortgage or security interest required to be granted to the Agent hereunder. SECTION 8.06. POWERS AND DUTIES OF THE BORROWER WITH RESPECT TO THE COLLATERAL. (a) Subject to the provisions of this Agreement, so long as no Event of Default shall have occurred and be continuing, the Borrower shall have the right to deal with, manage and administer the Collateral and to collect and use the proceeds thereof in such manner as it shall deem appropriate (subject to the provisions of Section 2.04), including, without limitation, the right to engage in development and/or construction activities with respect to any Real Estate constituting part of the Collateral; PROVIDED, HOWEVER, that the Borrower shall not be entitled to exercise that right in any manner that would conflict with or prejudice the continued validity or perfection of any Mortgage or security interest in any Collateral held by the Agent pursuant to this Agreement. Subject to the foregoing provision, the Agent shall, at the reasonable request of the Borrower, consent to and, when necessary, join in such plats, zoning applications, utility easements and similar instruments (all of which shall be in form and substance satisfactory to the Agent) as may be required in connection with the Borrower's management or administration of any item of Collateral. (b) Unless the Borrower shall have been notified, pursuant to Section 9.03 hereof, that it has been discharged from its right to deal with, manage and administer all items of the Collateral, the Borrower shall, subject to the provisions of this Agreement, manage and administer all the Collateral in such manner as they shall deem appropriate, without charge to the Lenders; PROVIDED, HOWEVER, that the Borrower shall remain fully 58 responsible for all its obligations as owner, creditor or otherwise with respect to the Collateral. SECTION 8.07. POWER OF ATTORNEY. With respect to the Collateral which the Agent may from time to time hold and/or be entitled to obtain hereunder, the Agent hereby is irrevocably appointed by the Borrower as Borrower's true and lawful attorney-in-fact with full power, from time to time, to (i) take possession of and endorse in Borrower's name any Mortgages, deeds, pledges, assignments and other documents and any notes, checks, drafts, bills of exchange, money orders and any other documents received in payment for or on account of those assets and properties, (ii) to collect, sue for and give acquittance for moneys due on account of those assets and properties, (ii) to withdraw any claims, suits or proceedings pertaining to or arising out of those assets and properties. The foregoing appointment is with full power of substitution and is coupled with an interest. The Agent shall not be liable for any failure to collect or enforce the payment of any of those assets and properties. ARTICLE IX EVENTS OF DEFAULT SECTION 9.01. EVENTS OF DEFAULT. In case of the happening of any of the following events (hereinafter called "Events of Default"): (a) any representation or warranty made or deemed made by or on behalf of the Borrower to the Lenders or the Agent under or in connection with this Agreement shall be false or misleading in any material respect when made; (b) any report, certificate, financial statement or other document or instrument furnished in connection with this Agreement or the Loans hereunder shall be false or misleading in any material respect when furnished; (c) default shall be made in the payment of (i) the principal of any of the Notes when and as due and payable, or (ii) the interest on any of the Notes, any fees or any other sums due pursuant to Article II, within 5 days after the same becomes due and payable; (d) default shall be made with respect to any Indebtedness or Contingent Obligations of the Borrower (other than the Indebtedness evidenced by the Notes), or in any net liabilities under interest rate swap, exchange or cap agreements, beyond any applicable period of grace, or default shall be made with respect to the performance of any other obligation incurred in connection with any such Indebtedness or liabilities 59 beyond any applicable period of grace, or default shall be made with respect to any other liability of $10,000 or more, if the effect of any such default is to accelerate the maturity of such Indebtedness or liability or to cause any other liability to become due prior to its stated maturity, or any such Indebtedness or liability shall not be paid when due and such default shall not have been remedied or cured by the Borrower or waived by the obligor; (e) default shall be made in the due observance or performance of any of the provisions of Article VII or Article VIII of this Agreement; (f) default shall be made in the due observance or performance of any other covenant, agreement or condition on the part of the Borrower to be performed, and such default shall have continued for a period of 30 days after the occurrence thereof; (g) the Borrower shall (i) petition or apply for, seek, consent to, or acquiesce in, the appointment of a receiver, trustee, examiner, custodian, liquidator or similar official of the Borrower or any of its properties or assets, (ii) be unable, or admit in writing its inability, to pay its debts as they mature, (iii) make a general assignment for the benefit of or a composition with its creditors, (iv) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (v) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect, or file a petition or an answer seeking dissolution, winding up, liquidation or reorganization or an arrangement with creditors or a composition of its debts or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debts, dissolution or liquidation law or statute or other statute or law for the relief of debtors, or file any answer admitting the material allegations of a petition filed against it in any proceeding under such law, or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or if corporate or other action shall be taken by the Borrower for the purpose of effecting any of the foregoing, or (vi) fail to contest in good faith any appointment or proceeding described in Section 9.01(h); (h) an order, judgment, or decree shall be entered without the application, approval, or consent of the Borrower by any court of competent jurisdiction appointing a receiver, trustee or liquidator of the Borrower or a proceeding described in Section 9.01(g) shall be instituted against the Borrower, and such appointment shall continue undischarged or such proceeding continues undismissed or unstayed for any period of 45 days; (i) final judgment for the payment of money in excess of $25,000 shall be rendered against the Borrower and the same shall remain undischarged for a period of 60 30 days during which execution shall not be effectively stayed or contested in good faith; (j) final judgment(s) for the payment of money in excess of an aggregate of $250,000 shall be rendered against the Borrower (or any of them) after the Effective Date and shall remain undischarged for a period of ten days; (k) there shall occur any Event or Events which, individually or in the aggregate, shall be deemed by the Required Lenders to have had a Material Adverse Effect; (l) The Borrower shall be the subject of any proceeding or investigation pertaining to the release by the Borrower, any of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or any violation of any federal, state or local environmental, health or safety law or regulation, which, in either case, could reasonably be expected to have a Material Adverse Effect; or (m) The occurrence of any "default", as defined in any Loan Document (other than this Agreement or the Notes) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement or the Notes), which default or breach continues beyond any period of grace therein provided; then, or at any time thereafter during the continuance of any such event, the Required Lenders (or the Agent on their behalf) may, by written or telegraphic notice to the Borrower, (i) terminate the Aggregate Commitment and/or (ii) declare all the Obligations to be forthwith due and payable, without presentment, demand, protest or other notice of any kind, all of which the Borrower hereby expressly waives, anything contained herein or in the Notes to the contrary notwithstanding; PROVIDED, HOWEVER, that upon the happening of any of the events set forth in subsection (g) or subsection (h) above the obligations of the Lenders to make Loans hereunder shall automatically terminate and the Obligations shall immediately become due and payable without any election or action on the part of the Agent or any Lender and without presentment, demand, protest or other notice of any kind, all of which the Borrower hereby expressly waives. SECTION 9.02. RIGHT TO RESCIND ACCELERATION. If, within 30 days after acceleration of the maturity of the Obligations or termination of the obligations of the Lenders to make Loans hereunder as a result of any Event of Default (other than any Event of Default as described in Section 9.01(g) or (h) with respect to the Borrower) and before any judgment or decree for the payment of the Obligations due shall have been obtained or entered, the Required Lenders (in their sole discretion) shall so direct, 61 the Agent shall, by notice to the Borrower, rescind and annul such acceleration and/or termination. SECTION 9.03. RIGHTS AS TO COLLATERAL. (a) If, on the Maturity Date, the Borrower shall not have paid in full all the Obligations, the Agent, with the consent of the Required Lenders, shall take (and/or shall cause one or more of its designees to take) any or all of the following actions, after giving at least three Business Days' (which notice period the Borrower acknowledges to be adequate and reasonable) written notice to the Borrower (a single such notice being sufficient to entitle the Agent to take one or more of the actions described below): (i) prohibit the Borrower from taking any action otherwise permitted by Section 8.06(a) hereof, and/or discharge the Borrower from their right to manage and administer the items of Collateral as provided in Section 8.06(b) hereof; (ii) notify the mortgagors, obligors, lessees or other parties interested in any item of the Collateral of the interest of the Lenders therein and of any action proposed to be taken with respect thereto, and inform any of those parties that all payments otherwise payable to the Borrower with respect thereto thereafter shall be made to the Agent until all the Obligations have been paid in full; (iii) receive and retain all payments and all other distributions of any kind with respect to any and all of the Collateral; (iv) exercise any rights of voting or consent pertaining to any item of Collateral to the same extent as if the Agent were the outright owner thereof for the benefit of the Lenders, or cause any item of the Collateral to be transferred to its own name and have such transfer recorded in any place or places deemed appropriate by the Agent; (v) deal with the Collateral in all respects as if it were the outright owner thereof for the benefit of the Lenders; (vi) take such action as directed by the Required Lenders with respect to the sale, assignment and delivery of the whole of, or from time to time any one or more items of, the Collateral, including, without limitation: to sell, assign and deliver the whole of, or from time to time any part of, the Collateral at any broker's board or at any private sale or at public auction, with or without demand on the Borrower or advertisement of the time or place of sale or adjourn- 62 ment thereof or otherwise, for cash, for credit or for other property, for immediate or future delivery, and for such price or prices and on such terms as the Required Lenders in their discretion may determine, and the Agent or any of the other Lenders may bid for and purchase the whole or any one or more items of the Collateral so sold free from any right or equity of redemption; to adjourn any such sale or cause the same to be adjourned from time to time to a subsequent time and place announced at the time and place fixed for the sale; and to carry out any agreement to sell any item or items of Collateral in accordance with the terms of such agreement, notwithstanding that after the Agent shall have entered into such agreement, all the Obligations may have been paid in full; and (vii) in addition to, and not by way of limitation of, any of the rights specified above, exercise any and all rights and remedies afforded to it, as a secured party in possession of collateral or otherwise, under any and all applicable provisions of laws. (b) The Agent, any Person designated by the Agent to take any of the action as enumerated in subsection (a) above, any of the Lenders, and their respective officers, directors, employees, agents and counsel shall not incur any liability (other than for acts or omissions amounting to gross negligence or willful misconduct) as a result of the sale of the Collateral, or any part thereof, in a commercially reasonable manner in accordance with the provisions of subsection (a)(vi) above or of applicable law, or for the failure to sell or offer for sale the Collateral, for any reason whatsoever. The Borrower waives any claims (other than those attributable to acts or omissions amounting to gross negligence or willful misconduct) against the Agent, any Person designated by the Agent to take any action, the Lenders, and their respective officers, directors, employees, agents and counsel arising with respect to the price at which the Collateral, or any part there of, may have been sold or by reason of the fact that such price was less than the aggregate of all the Obligations, PROVIDED that all such sales have been effected in a commercially reasonable manner. (c) The Agent shall collect the cash proceeds received from any sale or other disposition or from any other source contemplated by subsection (a) above and, after deducting all costs and expenses incurred by the Agent, any person designated by the Agent to take any of the actions enumerated in subsection (a) above, and the Lenders (other than in connection with the purchase by any of the Lenders of any item of the Collateral) in connection with such collection and sale (including, without limitation, reasonable counsel fees and expenses), shall apply the same in accordance with the provisions of Section 9.04 below. Noncash proceeds received by the Agent shall be held by it, unless and until instructions are received from the Required Lenders to distribute those proceeds. Upon any such distribution in the order set forth in Section 63 9.04 below, the Obligations shall be reduced by the fair market value of any such noncash proceeds. (d) If the amount of all proceeds received in liquidation of the Collateral which shall be applied to payment of the Obligations shall be insufficient to pay all the Obligations in full, the Borrower acknowledges that it shall continue to remain liable for any deficiency, together with any interest thereon and costs of collection thereof (including reasonable counsel fees and legal expenses), in accordance with the terms of this Agreement and the other Loan Documents. The Agent shall account to the Borrower as to all applications of the proceeds of the Collateral in reduction of the Obligations. (e) Notwithstanding the foregoing, none of the provisions of this Section 9.03 shall confer on the Agent or any of the Lenders any rights or privileges not permissible under applicable law; PROVIDED, HOWEVER, that to the extent the Borrower may waive any provisions of applicable law which would or could be in conflict with the terms of this Section 9.03, the Borrower hereby expressly waives the application of any such laws and provisions. (f) In connection with the foregoing provisions of this Section 9.03, the Borrower from time to time promptly shall execute and deliver, or cause to be executed and delivered, to the Agent such reasonable documents and instruments, and take or cause to be taken other reasonable and lawful action, as the Agent reasonably shall deem necessary or desirable to enable it to exercise any of the rights with respect to the Collateral granted to it pursuant to this Section 9.03. SECTION 9.04. APPLICATION OF FUNDS. In the event that all the Obligations shall have become or been declared due and payable pursuant to the terms of Section 9.01 hereof, the Lenders agree, by and among themselves (and, with respect to subsection (f) below, with the Borrower), that any funds received from or on behalf of the Borrower (pursuant to the provisions of Section 9.03 or otherwise) by the Agent or any of the Lenders (except funds retained by any Lender pursuant to the terms of Section 11.01 hereof) shall be remitted to the Agent, if received by any Lender, and applied by the Agent (in the case of subsections (c), (d) and (e) below), on a pro rata basis among the Lenders in accordance with their respective percentages of the Aggregate Commitment in the following manner and order: (a) first, to pay to or reimburse the Agent for any out-of-pocket expenses for which it is entitled to be paid or reimbursed pursuant to the provisions of Section 13.03 hereof; (b) second, to reimburse any of the Lenders pursuant to the provisions of Section 13.03 hereof; 64 (c) third, to payment of accrued and unpaid interest due on the Notes; (d) fourth, to payment of the outstanding principal of the Notes; (e) fifth, to payment in full of all the remaining Obligations; and (f) sixth, any remainder shall be returned to the Borrower or as otherwise required by applicable law. ARTICLE X THE AGENT SECTION 10.01. APPOINTMENT. The First National Bank of Chicago is hereby appointed Agent hereunder and under each other Loan Document and, subject to the provisions of Section 10.13 below, each of the Lenders irrevocably authorizes the Agent to act as the agent of such Lender. The Agent agrees to act as such upon the express conditions contained in this Article X. The Agent shall not have a fiduciary relationship in respect of any Lender by reason of this Agreement. SECTION 10.02. POWERS. The Agent shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Agent shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Agent. SECTION 10.03. GENERAL IMMUNITY. Neither the Agent nor any of its directors, officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except for its or their own gross negligence or willful misconduct. SECTION 10.04. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (i) any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document; (iii) the satisfaction of any condition specified in Article IV, except receipt of items required to be delivered to the Agent; or (iv) the validity, effectiveness or genuineness (except its own due execution thereof) of any 65 Loan Document or any other instrument or writing furnished in connection therewith. Further, the Agent assumes no obligation to any other Lender as to the collectibility of any Loans made by any Lender to the Borrower. Each Lender expressly acknowledges that the Agent has not made any representations or warranties to it on or prior to the date hereof and that no act by the Agent hereafter taken shall be deemed to constitute any representation or warranty by the Agent to any other Lender. Each Lender acknowledges that it has taken and will take such action and make such investigation as it deems necessary to inform itself as to the affairs and creditworthiness of the Borrower. SECTION 10.05. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its duties as Agent hereunder and under any other Loan Document by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except as to money or securities received by it or its authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Agent shall be entitled to advice of counsel concerning all matters pertaining to the agency hereby created and its duties hereunder and under any other Loan Document. SECTION 10.06. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall not be under a duty to examine into or pass upon the validity, effectiveness, genuineness or value of this Agreement, the Notes or any other document furnished pursuant hereto or thereto or in connection herewith, and the Agent shall be entitled to assume that the same are valid, effective and genuine and what they purport to be. The Agent shall be entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or document reasonably believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the Agent, which counsel may be employees of the Agent. The Agent shall not be liable for any action taken or suffered in good faith by it based on or in accordance with any of the foregoing. SECTION 10.07. NO WAIVER OF RIGHTS. With respect to its Commitment, Loans made by it and the Note issued to it, the Agent shall have the same rights and powers hereunder and under any other Loan Document as any Lender and may exercise the same as though it was not the Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise indicates, include the Agent in its individual capacity. The Agent may accept deposits from, lend money to and issue letters of credit for the account of, and generally engage in any kind of business with the Borrower or its Affiliates (including, without limitation, trust, debt, equity and other transactions) in addition to the transaction contemplated by this Agreement or any other Loan Document; it being expressly understood and agreed that neither the Agent nor any other Lender shall be deemed by the execution hereof to have waived any rights under any 66 term loan or other agreement with the Borrower relating to any other business or loans to the Borrower not a part of the Aggregate Commitment under this Agreement. SECTION 10.08. KNOWLEDGE OF EVENT OF DEFAULT. It is expressly understood and agreed that the Agent shall be entitled to assume that no Event of Default or Unmatured Default has occurred and is continuing, unless the officers of the Agent active on the Borrower's account have actual knowledge of such occurrence or have been notified by a Lender that such Lender considers that an Event of Default or Unmatured Default has occurred and is continuing and specifying the nature thereof. SECTION 10.09. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to reimburse and indemnify the Agent ratably in accordance with their respective Pro Rata Shares (i) for any amounts not reimbursed by the Borrower for which the Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any other expenses incurred by the Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby, or the enforcement of any of the terms thereof or of any such other documents, PROVIDED that no Lender shall be liable for any of the foregoing to the extent they arise from the gross negligence or willful misconduct of the Agent. SECTION 10.10. NOTICES TO THE BORROWER. In each instance that a notice is required, pursuant to the terms hereof, to be given by one or more of the Lenders to the Borrower, the Lenders desiring that such notice be given shall so advise the Agent (which advice, if given by telephone, shall be promptly confirmed by telex or letter to the Agent at its address listed in the signature pages hereto), which shall transmit such notice to the Borrower promptly after its having been so advised by the appropriate number of Lenders; PROVIDED, HOWEVER, that subject to the provisions of Section 10.14 hereof, if the Agent shall fail to transmit such notice to the Borrower within a reasonable period of time after its having been so advised by the appropriate number of Lenders, the Lenders desiring that such notice be given may transmit such notice directly to the Borrower. SECTION 10.11. ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders and on all holders of Notes. The Agent shall be 67 fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action. SECTION 10.12. LENDER CREDIT DECISION. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on the financial statements prepared by the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents. SECTION 10.13. RESIGNATION OR REMOVAL OF THE AGENT. If, at any time, Lenders holding Notes having aggregate outstanding principal balances equal to at least 75% of the then outstanding amount of the Aggregate Commitment (excluding from such computation the Agent and its Notes) shall deem it advisable, those Lenders may submit to the Agent notification by certified mail, return receipt requested of its removal as Agent under this Agreement, which removal shall be effective as of the date of receipt of such notice by the Agent. If, at any time, the Agent shall deem it advisable, in its sole discretion, it may submit to each of the Lenders written notification, by certified mail, return receipt requested, of its resignation as Agent under this Agreement, which resignation shall be effective as of thirty days after the date of such notice. In the event of any such removal or resignation, the Required Lenders may appoint a successor to the Agent. In the event the Agent shall have resigned and/or have been removed and so long as no successor shall have been appointed, the Borrower shall make all payments due each Lender hereunder directly to that Lender and all powers specifically delegated to the Agent by the terms hereof may be exercised by the Required Lenders. Upon the removal or resignation of the Agent, the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. After the removal or resignation of the Agent, the provisions of this Article X shall continue in effect for its benefit in respect of any actions taken or omitted to be taken while it was acting as the Agent hereunder and under the other Loan Documents. SECTION 10.14. BENEFITS OF ARTICLE X. None of the provisions of this Article X shall inure to the benefit of the Borrower or of any Person other than Agent and each of the Lenders and their respective successors and permitted assigns. Accordingly, neither the Borrower nor any Person other than Agent and the Lenders (and their respective successors and permitted assigns) shall be entitled to rely upon, or to raise as 68 a defense, the failure of the Agent or any Lenders to comply with the provisions of this Article X. ARTICLE XI SETOFF; RATABLE PAYMENTS SECTION 11.01. SETOFF. In addition to, and without limitation of, any rights of the Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any Event of Default or Unmatured Default occurs, any indebtedness from any Lender to the Borrower (including all account balances, whether provisional or final and whether or not collected or available) may be offset and applied toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part hereof, shall then be due. Each Lender agrees promptly to notify the Borrower after any such set-off and application made by such Lender; PROVIDED, HOWEVER, that the failure to give such notice shall not affect the validity of any such set-off and application. The rights of each Lender under this Section 11.01 are in addition to any other rights and remedies which that Lender may have under this Agreement or otherwise. SECTION 11.02. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has payment made to it upon its Loans (other than payments received pursuant to Sections 3.01, 3.02 or 3.04) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Loans held by the other Lenders so that after such purchase each Lender will hold its Pro Rata Share of Loans. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in accordance with their respective Pro Rata Shares. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made. ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS SECTION 12.01. SUCCESSORS AND PERMITTED ASSIGNS. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and permitted assigns, except that (i) the Borrower shall not have the right to assign its rights or obligations under the Loan 69 Documents and (ii) any assignment by any Lender must be made in compliance with Section 12.03. Notwithstanding clause (ii) of this Section, any Lender may at any time, without the consent of the Borrower or the Agent, assign all or any portion of its rights under this Agreement and its Notes to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such assignment shall release the transferor Lender from its obligations hereunder. The Agent may treat the payee of any Note as the owner thereof for all purposes hereof unless and until such payee complies with Section 12.03 in the case of an assignment thereof or, in the case of any other transfer, a written notice of the transfer is filed with the Agent. Any assignee or transferee of a Note agrees by acceptance thereof to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the holder of any Note, shall be conclusive and binding on any subsequent holder, transferee or assignee of such Note or of any Note or Notes issued in exchange therefor. SECTION 12.02. PARTICIPATIONS. (a) PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender under the Loan Documents. In the event of any such sale by a Lender of participating interests to a Participant, such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the holder of any such Note for all purposes under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrower and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under the Loan Documents. (b) VOTING RIGHTS. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Loan or Commitment, postpones any date fixed for any regularly-scheduled payment of principal of, or interest or fees on, any such Loan or Commitment, releases any guarantor of any such Loan or releases any substantial portion of collateral, if any, securing any such Loan. 70 (c) BENEFIT OF SETOFF. The Borrower agrees that each Participant shall be deemed to have the right of setoff provided in Section 11.01 in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, PROVIDED that each Lender shall retain the right of setoff provided in Section 11.01 with respect to the amount of participating interests sold to each Participant. The Lenders agree to share with each Participant, and each Participant, by exercising the right of setoff provided in Section 11.01, agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared in accordance with Section 11.02 as if each Participant were a Lender. SECTION 12.03. ASSIGNMENTS. (a) PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time assign to one or more banks or other entities ("Purchasers") all or any part of its rights and obligations under the Loan Documents. Such assignment shall be substantially in the form of Exhibit C hereto. Unless an Event of Default has occurred and is continuing, the consent of the Borrower and the Agent shall be required prior to an assignment becoming effective with respect to a Purchaser which is not a Lender or an Affiliate thereof. Such consent shall be substantially in the form attached as Exhibit C-2 hereto and shall not be unreasonably withheld. (b) EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of a notice of assignment, substantially in the form attached as Exhibit C-1 hereto (a "Notice of Assignment"), together with any consents required by Section 12.03(a), and (ii) payment of a $2,500 fee to the Agent for processing such assignment, such assignment shall become effective on the effective date specified in such Notice of Assignment. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Lender party to this Agreement and any other Loan Document executed by the Lenders and shall have all the rights and obligations of a Lender under the Loan Documents, to the same extent as if it were an original party hereto, and no further consent or action by the Borrower, the Lenders or the Agent shall be required to release the transferor Lender with respect to the percentage of the Aggregate Commitment and Loans assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this Section 12.03(b), the transferor Lender, the Agent and the Borrower shall make appropriate arrangements so that replacement Notes are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in each case in principal amounts reflecting their Commitment, as adjusted pursuant to such assignment. 71 (c) DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to disclose to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Lender's possession concerning the creditworthiness of the Borrower and its Subsidiaries. (d) TAX TREATMENT. If any interest in any Loan Document is transferred to any Transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 2.19. ARTICLE XIII MISCELLANEOUS SECTION 13.01. NOTICE. (a) Except as otherwise permitted by Section 2.14 with respect to borrowing notices, all notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing or by telex or by facsimile and addressed or delivered to such party at its address set forth below its signature hereto or at such other address as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid, shall be deemed given when received (or when delivery is refused); any notice, if transmitted by telex or facsimile, shall be deemed given when transmitted (answerback confirmed in the case of telexes). (b) The Borrower, the Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto. SECTION 13.02. SURVIVAL OF REPRESENTATIONS. All covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by the Lenders of any Loans herein contemplated and the execution and delivery to the Lenders of the Notes evidencing the Commitments, and shall continue in full force and effect until all of the Obligations have been paid in full and the Aggregate Commitment has been terminated. SECTION 13.03. EXPENSES. The Borrower shall pay (i) all expenses, including attorneys' fees and disbursements (which attorneys may be employees of the Agent or any Lender), incurred by the Agent and any Lender in connection with the adminis- 72 tration of this Agreement and the other Loan Documents, any amendments, modifications or waivers with respect to any of the provisions thereof and the enforcement and protection of the rights of the Lenders and the Agent under this Agreement or any of the other Loan Documents, including all recording and filing fees, documentary stamp, intangibles and similar taxes, title insurance premiums, appraisal fees and other costs and disbursements incurred in connection with the taking of collateral and the perfection and preservation of the Lenders' security therein, and (ii) the reasonable fees and the disbursements of Agent's attorneys (which attorneys may be employees of the Agent) in connection with the preparation, negotiation, execution, delivery and review of this Agreement, the Notes and the other Loan Documents (whether or not the transactions contemplated by this Agreement shall be consummated) and the closing of the transactions contemplated hereby. Expenses being reimbursed by the Borrower under this Section include, without limitation, the cost and expense of obtaining an appraisal of each parcel of real property or interest in real property which serves or is proposed as Collateral, which appraisals shall be in conformity with the applicable requirements of any law or any governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any interpretation thereof, including, without limitation, the provisions of Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended, reformed or otherwise modified from time to time, and any rules promulgated to implement such provisions. SECTION 13.04. INDEMNIFICATION OF THE LENDERS AND THE AGENT. The Borrower shall indemnify and hold harmless the Agent and each Lender, and their respective directors, officers and employees against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, all expenses of litigation or preparation therefor whether or not the Agent or any Lender is a party thereto) which any of them may pay or incur arising out of or relating to, directly or indirectly, this Agreement, the other Loan Documents, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of any Loan hereunder; PROVIDED, HOWEVER, that in no event shall the Agent or a Lender have the right to be indemnified hereunder for its own gross negligence or willful misconduct nor shall the Agent be indemnified against any liabilities which arise as a result of any claims made or actions, suits or proceedings commenced or maintained against any Lender (including the Agent, in its capacity as such) (i) by that Lender's shareholders or any governmental regulatory body or authority asserting that such Lender or any of its directors, officers, employees or agents violated any banking or securities law or regulation or any duty to its own shareholders, customers (excluding the Borrower) or creditors in any manner whatsoever in entering into or performing any of its obligations contemplated by this Agreement or (ii) by any other Lender. The obligations of the Borrower under this Section shall survive the termination of this Agreement. 73 SECTION 13.05. MAXIMUM INTEREST RATE. It is the intention of the Lenders and the Borrower that the interest (as defined under applicable law) on the Indebtedness evidenced by the Notes which may be charged to, or collected or received from the Borrower shall not exceed the maximum rate permissible under applicable law. Accordingly, anything herein or in any of the Notes to the contrary notwithstanding, should any interest (as so defined) be charged to, or collected or received from the Borrower by the Lenders pursuant hereto or thereto in excess of the maximum legal rate, then the excess payment shall be applied to the reduction of the aggregate outstanding principal balance of the Obligations, and any portion of the excess payment remaining after payment in full thereof shall be returned by the Lenders to the Borrower. SECTION 13.06. MODIFICATION OF AGREEMENT. No modification, amendment or waiver of any provision of this Agreement or the Notes, nor any consent to any departure by the Borrower therefrom, in any event shall be effective unless the same shall be in writing and signed by the Borrower (or by the Company on their behalf) and by the Required Lenders (or by the Agent on their behalf), and then the waiver or consent shall be effective only in the specific instance and for the purpose for which given; PROVIDED, HOWEVER, that no such modification, amendment or waiver shall, without the consent of each Lender affected thereby: (i) extend the maturity of any Loan or Note or reduce or forgive the principal amount thereof, or reduce the rate or extend the time of payment of interest or fees thereon; (ii) reduce the percentage specified in the definition of Required Lenders; (iii) extend the Termination Date otherwise than pursuant to Section 2.07, or reduce the amount or extend the payment date for, the mandatory payments required under Section 2.04, or increase the amount of the Commitment of any Lender hereunder, or permit the Borrower to assign its rights under this Agreement; (iv) modify or amend the provisions of Sections 2.07; or (v) mend this Section 13.06. No amendment of any provision of this Agreement relating to the Agent shall be effective without the written consent of the Agent. No notice to or demand of the Borrower in any case shall entitle the Borrower to any other or further notice or demand in the same, similar or other circumstances. 74 SECTION 13.07. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Event of Default or an acquiescence therein, and the making of a Loan notwithstanding the existence of an Event of Default or Unmatured Default, or the inability of the Borrower to satisfy the conditions precedent to such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 13.06, and then only to the extent in such writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Agent and the Lenders until the Obligations have been paid in full. SECTION 13.08. JOINT AND SEVERAL OBLIGATIONS OF BORROWER; SEVERAL OBLIGATIONS OF LENDERS. All obligations, representations and warranties hereunder and under any of the Loan Documents, unless otherwise expressly stated, shall be the joint and several liability of all of the entities comprising the Borrower. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and assigns. SECTION 13.09. SEVERABILITY. If any one or more of the provisions contained in this Agreement or the Notes is held invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. SECTION 13.10. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which may be executed by one or more of the parties hereto, but all of which, when taken together, shall constitute a single agreement binding on all the parties hereto. SECTION 13.11. REPRESENTATION AND WARRANTY BY THE LENDERS. The Lenders represent and warrant to the Borrower that the Notes to be acquired by them hereunder will evidence loans made in the ordinary course of their respective commercial banking or real estate lending businesses. 75 SECTION 13.12. THE COMPANY AS AGENT FOR EACH OTHER BORROWER. Each of the entities comprising the Borrower hereby appoints the Company as their agent and attorney-in-fact to execute and deliver any and all documents for an on behalf of the Borrower in connection with the transactions contemplated by this Agreement or any of the other Loan Documents, or in connection with the amendment, modification or termination of any thereof, and hereby agree that upon execution of any such documents or instruments they shall be binding upon each of the Borrower. The Borrower further agree that the Lenders may rely upon written representations from the Company that it is acting on behalf of the Borrower in accordance with the provisions of this Section 13.12 until such time as it receives notice in writing from the Borrower of the termination of the designation of the Company as agent an attorney-in-fact for each Borrower. SECTION 13.13. LOSS, ETC., NOTES. Upon receipt by the Borrower of reasonably satisfactory evidence of the loss, theft, destruction or mutilation of any of the Notes, upon reimbursement to the Borrower of all reasonable expenses incidental thereto and upon surrender and cancellation of the relevant Note, if mutilated, the Borrower shall make and deliver in lieu of that Note (the "Prior Note") a new Note of like tenor, except that no reference need be made in the new Note to any installment or installments of principal, if any, previously due and paid upon the Prior Note. Any Note made and delivered in accordance with the provisions of this Section shall be dated as of the date to which interest has been paid on the unpaid principal amount of the Prior Note. SECTION 13.14. GOVERNMENTAL REGULATION. Anything contained in this Agreement to the contrary notwithstanding, no Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation. SECTION 13.15. TAXES. Any taxes (excluding federal income taxes on the overall net income of any Lender) or other similar assessments or charges payable or ruled payable by any governmental authority in respect of the Loan Documents shall be paid by the Borrower, together with interest and penalties, if any. SECTION 13.16. HEADINGS. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents. SECTION 13.17. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of the parties hereto with respect to the subject matter hereof; PROVIDED, HOWEVER, that the fees payable by Borrower to First Chicago in consideration of its agreement to serve as Agent hereunder are set forth in a separate letter agreement between Borrower and First Chicago. The parties hereto agree that on the Effective 76 Date the commitments of the Prior Lenders under the Prior Credit Agreement shall be terminated and of no further force and effect. SECTION 13.18. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. SECTION 13.19. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDINC BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS. SECTION 13.20. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER. [SIGNATURES BEGIN ON NEXT PAGE] 77 IN WITNESS WHEREOF, the Borrower and the Lenders have caused this Agreement to be duly executed as of the date first above written. BORROWER: LENNAR CORPORATION and each of the Subsidiaries listed on Schedule I By: /s/ ALLAN J. PEKOR ----------------------------- Allan J. Pekor as Vice President of each of such corporations except Bert L. Smokler & Company, Lennar Financial Services, Inc., Loan Funding, Inc., Unisure Insurance Agency, Inc. and Universal Title Insurors, Inc. and as Director of each of Bert L. Smokler & Company, Lennar Financial Services, Inc., Loan Funding, Inc., Unisure Insurance Agency, Inc., and Universal Title Insurors, Inc. Attest: /s/ MORRIS J. WATSKY ----------------------------- Morris J. Watsky as Assistant Secretary of each of such corporations Address: Lennar Corporation 700 Northwest 107th Avenue Miami, Florida 33172 Attention: Leonard Miller, President [SIGNATURES CONTINUE ON NEXT PAGE] 78 COMMITMENTS LENDERS: $32,500,000 THE FIRST NATIONAL BANK OF CHICAGO, Individually and as Agent By /s/ F. PATT SCHIEWITZ ----------------------------- F. Patt Schiewitz, Vice President Address: The First National Bank of Chicago One First National Plaza 13th Floor Suite 0318 Chicago, Illinois 60670-0318 Attention: James C. Rozek, Vice President with a copy to: The First National Bank of Chicago One First National Plaza Suite 0801 Chicago, Illinois 60670-0801 Attention: Law Department $27,500,000 THE FIRST NATIONAL BANK OF BOSTON By: /s/ PAUL DIVITO ----------------------------- Address: 400 Perimeter Center Terrace Suite 745 Atlanta, Georgia 30346 Attention: Linda Carter, Vice President 79 $25,000,000 BANK ONE, TEXAS, N.A. By: /s/ DALE W. RENNER ----------------------------- Address: 1717 Main Street, 3rd Floor Dallas, Texas 75201 Attention: Dale W. Renner, Vice President $27,500,000 CREDIT LYONNAIS ATLANTA AGENCY By: /s/ DAVID M. CAWRSE ----------------------------- Address: Suite 1700 235 Peachtree Street, N.E. Atlanta, Georgia 30303 Attention: Pascal Seris, Vice President CREDIT LYONNAIS CAYMAN ISLAND BRANCH By: /s/ DAVID M. CAWRSE ----------------------------- Address: c/o Credit Lyonnais Atlanta Agency Suite 1700 235 Peachtree Street, N.E. Atlanta, Georgia 30303 Attention: Pascal Seris, Vice President $5,000,000 INTERCONTINENTAL BANK By: /s/ KAREN B. GILMORE ----------------------------- Address: 6th Floor 200 S.E. First Street Miami, Florida 33131 Attention: Karen B. Gilmore, Senior Vice President 80 $30,000,000 COMERICA BANK By: /s/ MICHAEL KRZYSTOWCZYK ----------------------------- Address: One Detroit Center 500 Woodward Avenue, 9th Floor Detroit, Michigan 48267 Attention: Michael Krzystowczyk, $30,000,000 NATIONSBANK OF FLORIDA, N.A. By: /s/ VINCENT A. TRIA, JR. ----------------------------- Address: 150 S.E. Third Avenue, Room 524 Miami, Florida 33131 Attention: Vincent A. Tria, Jr., Vice President $10,000,000 THE FUJI BANK, LIMITED NEW YORK BRANCH By: /s/ NORIMASA KURODA ----------------------------- Norimasa Kuroda, Joint General Manager Address: Two World Trade Center, 79th Floor New York, New York 10048 Attention: Brian O'Leary, Vice President 81 $17,500,000 BARNETT BANK OF SOUTH FLORIDA, N.A. By: /s/ CLAY F. WILSON ----------------------------- Address: 701 Brickell Avenue, 6th Floor Miami, Florida 33131 Attention: Clay F. Wilson, Vice President $25,000,000 NBD BANK, N.A. By: /s/ CAROLANN M. MORYKWAS Carolann M. Morykwas, ----------------------------- Vice President Address: Financial Services Division 611 Woodward Avenue Detroit, Michigan 48226-3497 Attention: Pat Power, Second Vice President $20,000,000 CONTINENTAL BANK By: /s/ MARK LARIVIERE ----------------------------- Address: 231 S. LaSalle, 15th Floor Chicago, Illinois 60697 Attention: Mark Lariviere, Vice President 82 EX-13 4 ANNUAL REPORT TO STOCKHOLDERS PAGES 12 THROUGH 34 EXHIBIT 13 Deloitte & Touche LLP Certified Public Accountants Suite 2500 100 Southeast Second Street Miami, Florida 33131-2135 Telephone: (305) 358-4141 Facsimile: (305) 372-3160 To the Board of Directors and Stockholders of Lennar Corporation: We have audited the accompanying consolidated balance sheet of Lennar Corporation and subsidiaries (the 'Company') as of November 30, 1994 and the related consolidated statements of earnings, cash flows and stockholders' equity for the year then ended. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audit. The consolidated financial statements of the Company as of November 30, 1993 and for the years ended November 30, 1993 and 1992 were audited by other auditors, whose report dated January 18, 1994, expressed an unqualified opinion on those statements. We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform our audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Lennar Corporation and subsidiaries at November 30, 1994, and the results of their operations and their cash flows for the year then ended, in conformity with generally accepted accounting principles. As discussed in Note 5 to the consolidated financial statements, effective December 1, 1993, the Company changed its method of accounting for income taxes to conform to Statement of Financial Accounting Standards No. 109, 'Accounting for Income Taxes', and its method of evaluating purchased mortgage servicing rights for impairment. /s/ Deloitte & Touche LLP January 18, 1995 12 Five Year Summary of Selected Financial Data Lennar Corporation and Subsidiaries Years Ended November 30,
(Dollars in thousands, except per share amounts) 1994 1993 1992 1991 1990 - ------------------------------------------------------------------------------------------------------------------------- RESULTS OF OPERATIONS: Revenues: Homebuilding $ 647,750 532,150 308,983 224,186 265,724 Investment $ 106,343 58,955 40,164 35,188 31,730 Financial services $ 54,348 59,204 56,723 37,688 21,455 Limited-purpose finance subsidiaries $ 9,485 14,355 21,164 26,070 29,325 Total revenues $ 817,926 664,664 427,034 323,132 348,234 Operating earnings - business segments: Homebuilding $ 70,645 60,207 38,063 23,041 21,645 Investment $ 51,904 28,497 16,992 10,419 10,373 Financial services $ 14,844 15,104 16,411 15,830 7,452 Corporate general and administrative expenses $ 10,309 8,670 8,833 7,921 7,094 Interest expense $ 15,382 13,088 9,519 8,695 11,372 Earnings before income taxes and cumulative effect of changes in accounting principles $ 111,746 82,054 45,363 33,043 21,013 Net earnings $ 69,126 52,511 29,146 21,148 13,658 Per share amounts: Earnings before cumulative effect of changes in accounting principles $ 1.89 1.51 .95 .70 .45 Net earnings $ 1.92 1.51 .95 .70 .45 Cash dividends - common stock $ .095 .08 .08 .08 .08 Cash dividends - Class B common stock $ .084 .067 .067 .067 .067 FINANCIAL POSITION: Total assets $1,293,223 1,195,490 980,261 862,273 835,212 Total debt $ 566,312 531,480 496,205 426,150 414,828 Stockholders' equity $ 534,088 467,473 319,330 291,237 269,705 Shares outstanding (000's) 35,768 35,716 30,440 30,312 29,895 Stockholders' equity per share $ 14.93 13.09 10.49 9.61 9.02 DELIVERY AND BACKLOG INFORMATION: Number of homes delivered 4,965 4,634 3,039 2,480 3,011 Backlog of home sales contracts 1,703 2,105 1,788 1,039 815 Dollar value of backlog $ 247,006 264,342 190,722 106,488 80,426
13 Management's Discussion and Analysis of Financial Condition and Results of Operations - -------------------------------------------------------------------------------- RESULTS OF OPERATIONS OVERVIEW Lennar's earnings increased in 1994 to $69.1 million ($1.92 per share) from 1993 earnings of $52.5 million ($1.51 per share) on total revenues in 1994 of $817.9 million, compared to $664.7 million of revenues in 1993. Fiscal 1993 earnings had increased from 1992 earnings of $29.1 million ($.95 per share), and revenues in 1993 had increased from 1992 revenues of $427.0 million. HOMEBUILDING The Homebuilding Division constructs and sells single-family attached and detached and multi-family homes. These activities also include the purchase, development and sale of residential land. The following tables set forth selected financial and operational information for the periods indicated: SELECTED HOMEBUILDING DIVISION FINANCIAL DATA (Dollars in thousands, except average sales Years Ended November 30, prices) 1994 1993 1992 - --------------------------------------------------------- Sales of homes $626,341 513,503 300,789 Other sales and revenues 21,409 18,647 8,194 - --------------------------------------------------------- Total revenues $647,750 532,150 308,983 Gross profit - home sales $128,209 113,344 70,540 Gross profit percentage 20.5% 22.1% 23.5% Selling, general & administrative expenses $ 63,204 55,482 36,249 S,G&A as a percentage of homebuilding revenues 9.8% 10.4% 11.7% Operating earnings $ 70,645 60,207 38,063 Average sales price $126,200 111,100 101,700 - --------------------------------------------------------- SUMMARY OF HOME AND BACKLOG DATA DELIVERIES 1994 1993 1992 - ------------------------------------------------------------ Florida 3,717 3,723 2,363 Arizona 632 607 536 Texas 616 304 140 - ------------------------------------------------------------ 4,965 4,634 3,039 - ------------------------------------------------------------ NEW ORDERS - ------------------------------------------------------------ Florida 3,361 3,921 3,003 Arizona 530 721 565 Texas 672 309 220 - ------------------------------------------------------------ 4,563 4,951 3,788 - ------------------------------------------------------------ BACKLOG - HOMES - ------------------------------------------------------------ Florida 1,322 1,678 1,480 Arizona 238 340 226 Texas 143 87 82 - ------------------------------------------------------------ 1,703 2,105 1,788 - ------------------------------------------------------------ BACKLOG - DOLLAR VALUE (In thousands) $247,006 264,342 190,722 - ------------------------------------------------------------ Revenues from homebuilding operations were $647.8 million in 1994, $532.2 million in 1993 and $309.0 million in 1992. The increased revenues in both years were the result of additional revenues from home sales. Revenues from the sale of homes increased 22% in 1994 and 71% in 1993, due to the number of homes delivered (4,965, 4,634 and 3,039 in 1994, 1993 and 1992, respectively) and an increase in average sales prices. The average price of a home delivered in 1994 increased 14% to $126,200 from $111,100 in 1993, having increased 9% during 1993 from $101,700 in 1992. The higher average sales prices were due to price increases for existing products, as well as a proportionately greater number of sales of higher-priced homes. Other Homebuilding Division sales and revenues consisted primarily of residential land sales in 1994 and 1992. In 1994, 1993 and 1992, sales of residential land totaled $18.8 million, $1.8 million and $3.1 million, respectively. In 1993, other sales and revenues included $13.7 million from the repairing or rebuilding of homes in south Dade County communities that were damaged by Hurricane Andrew. These activities did not have a significant impact on the Company's net earnings during 1993 and were substantially completed by November 30, 1993. 14 - -------------------------------------------------------------------------------- In fiscal 1994, new sales orders decreased by 8% when compared to 1993, which had increased by 31% over 1992. The 1994 decrease resulted in a decrease of 19% in the Company's backlog of home sales contracts to 1,703 at November 30, 1994, as compared to a backlog of 2,105 contracts a year earlier. The dollar value of contracts in backlog decreased 7% to $247.0 million at November 30, 1994 from $264.3 million a year earlier. The gross profit percentages from the sales of homes were 20.5% in 1994, 22.1% in 1993 and 23.5% in 1992. The decreases in the gross profit percentages were mainly attributable to increased competition in many of the Company's markets combined with increases in construction costs due to additional building code requirements in several counties throughout Florida and increases in lumber prices throughout 1993. Gross profit percentages are not significantly different for the various types of homes which the Company builds. Selling, general and administrative expenses increased by $7.7 million in 1994 and $19.2 million in 1993 primarily due to increases in volume related expenses such as sales commissions and outside brokers' commissions. Selling, general and administrative expenses as a percentage of total homebuilding revenues decreased to 9.8% in 1994 from 10.4% in 1993, which was a decrease from the 11.7% reported in 1992. The decreases in these percentages were primarily the result of the higher volume of homes delivered in both years as selling, general and administrative expenses were absorbed by a greater number of home deliveries. INVESTMENT The Investment Division is involved in the development, management and leasing, as well as the acquisition and sale, of commercial and residential properties and land. During the past three years, this division became a participant and manager in six partnerships which acquired portfolios of commercial mortgage loans and real estate. The Company shares in the profits or losses of the partnerships and also receives fees for the management and disposition of the partnerships' assets. The Company's interests in these partnerships range from 9.9% to 50%. These partnerships are capitalized primarily by long-term debt of which none is guaranteed by the Company. During 1994, this division also began acquiring, at a discount, the unrated portions of debt securities which are collateralized by real estate loans. The division has only invested in securities in which it is the special servicer on behalf of all the certificate holders of the security. The Company earns interest on its investment as well as fees for the special servicing activities. The following table provides selected financial information for the Investment Division: Years Ended November 30, (In thousands) 1994 1993 1992 - ------------------------------------------------------------ REVENUES Rental income $ 43,487 37,708 30,488 Equity in earnings of partnerships 20,710 7,046 385 Management fees 12,390 6,714 2,410 Sales of real estate 21,518 45 4,866 Other 8,238 7,442 2,015 - ------------------------------------------------------------ Total revenues 106,343 58,955 40,164 COST OF SALES AND EXPENSES 54,439 30,458 23,172 - ------------------------------------------------------------ OPERATING EARNINGS $ 51,904 28,497 16,992 - ------------------------------------------------------------ Investment Division revenues increased in 1994 to $106.3 million from $59.0 million in 1993. The higher revenues were partially the result of increased earnings and management fees from the Company's Investment Division partnerships. Rental income on operating properties owned directly by the Company increased during 1994 due to the addition of operating properties throughout the year. Also contributing to the increased revenues in 1994, was an increase in sales of real estate. These sales totaled $21.5 million in 1994, compared to almost no sales in 1993. Investment Division revenues increased from $40.2 million in 1992 to $59.0 million in 1993 primarily as a result of increases in earnings and management fees from partnerships, rental income and interest income. These increases were partially offset by lower sales of real estate. Operating earnings for the Investment Division increased to $51.9 million in 1994 from $28.5 million in 1993 and $17.0 million in 1992. These increases were due primarily to increases in earnings and management fees from the Company's partnerships, increases in rental income and an increase in gains on sales of real estate. The increase in operating earnings between 1992 and 1993 was partially offset by lower sales of real estate in 1993, when compared to the prior year. 15 - -------------------------------------------------------------------------------- FINANCIAL SERVICES Financial services activities are conducted primarily through Lennar Financial Services, Inc. ('LFS') and five principal subsidiaries. LFS subsidiaries perform mortgage servicing activities, and arrange mortgage financing, title insurance and closing services for a wide variety of borrowers and homebuyers. This division also invests in rated portions of commercial real estate mortgage-backed securities for which Lennar's Investment Division is the special servicer, and an investor in the unrated portion of those securities. The following table sets forth selected financial and operational information relating to the Financial Services Division: (Dollars in Years Ended November 30, thousands) 1994 1993 1992 - ------------------------------------------------------------ REVENUES $ 54,348 59,204 56,723 COSTS AND EXPENSES 39,504 44,100 40,312 INTERCOMPANY INTEREST EXPENSE 3,144 2,244 2,394 - ------------------------------------------------------------ OPERATING EARNINGS $ 11,700 12,860 14,017 - ------------------------------------------------------------ Dollar volume of mortgages originated $ 941,351 1,290,836 1,010,402 - ------------------------------------------------------------ Number of mortgages originated 9,000 12,100 8,800 - ------------------------------------------------------------ Principal balance of servicing portfolio $3,392,071 3,410,829 3,777,094 - ------------------------------------------------------------ Number of loans serviced 45,200 47,000 52,100 - ------------------------------------------------------------ Financial services' operating earnings decreased to $11.7 million in 1994, from $12.9 million and $14.0 million in 1993 and 1992, respectively. The decrease in 1994 earnings was partially attributable to lower gains from bulk sales of mortgage servicing rights. In 1994, these gains totaled $2.5 million, compared to $3.3 million during 1993. Also contributing to the lower operating earnings in 1994, was a decline in mortgage loan originations due to the general decline in mortgage loan originations across the country resulting from higher interest rates. The Company has reduced overhead in production and support areas in response to the lower origination volume. Partially offsetting the decreases in earnings in 1994, was a reduction of amortization expense for purchased mortgage servicing rights. This amortization decreased as a result of the change in accounting for purchased mortgage servicing rights during 1994. This change in accounting reduced both the carrying value of the purchased mortgage servicing rights and the related amortization. The decrease in 1993 earnings when compared to 1992 was primarily the result of fewer sales of packages of home mortgage loans. Gains recorded on these dispositions contributed $1.1 million and $3.1 million to operating earnings in 1993 and 1992, respectively. Also contributing to the decrease in 1993 earnings were lower operating earnings from servicing and origination activities. Operating earnings from these activities decreased due to higher costs associated with the expansion of loan origination activities and increased mortgage payoffs. The aforementioned decreases in earnings were partially offset by increases in interest income and gains on bulk sales of mortgage loan servicing rights which were $3.3 million in 1993. There were no bulk sales of mortgage loan servicing rights in 1992. INTEREST EXPENSE During 1994, 1993 and 1992, interest costs of $25.0 million, $19.7 million and $16.8 million, respectively, were incurred (excluding the limited-purpose finance subsidiaries) and $22.1 million, $17.1 million and $15.0 million, respectively, were capitalized by the Company's homebuilding and investment operations. Previously capitalized interest charged to expense was $15.4 million in 1994, $13.1 million in 1993 and $9.5 million in 1992. Interest amounts incurred in 1994 were higher than those incurred in 1993 and 1992 due to higher debt levels and interest rates. The higher debt at November 30, 1994 is a reflection of the expansion of both the Homebuilding and Investment Divisions. The higher amount of interest charged to expense in 1994, when compared to 1993 and 1992, is primarily the result of the higher volume of homes delivered and land sales during 1994. The amount of interest capitalized by the Company's real estate operations in any one year is a function of the assets under development, outstanding debt levels and interest rates. 16 - -------------------------------------------------------------------------------- INCOME TAXES The provision for income taxes was 39.0% of pre-tax income in 1994, 36.0% in 1993 and 35.7% in 1992. The 1994 provision for income taxes was higher due primarily to the adoption of Statement of Financial Accounting Standards No. 109, 'Accounting for Income Taxes', which required the Company to adjust the assets and liabilities acquired in prior business combinations from their net-of-tax to pre-tax amounts. The 1993 provision was higher than that of 1992 due to the increase in the federal tax rate from 34% to 35% during 1993. This increase was partially offset by additional differences between book and tax basis deductions during 1993, when compared to 1992. IMPACT OF ECONOMIC CONDITIONS In recent years, both nationally and in Florida, real estate development has been affected by more restrictive project lending credit criteria of commercial banks and other lending institutions. The Company does not generally utilize project lending to finance its construction activities. Instead, the Company finances its land acquisition and development activities, construction activities, mortgage banking activities and general operating needs primarily from its own base of $534.1 million of equity at November 30, 1994, as well as from unsecured commercial bank borrowings. The Company has maintained excellent relationships with the commercial banks participating in its financing arrangements and has no reason to believe that such relationships will not continue in the future. The availability of financing based on corporate banking relationships may provide a competitive advantage to the Company. The Company anticipates that there will be adequate mortgage financing available for the purchasers of its homes during 1995 through the Company's own financial services subsidiaries as well as from external sources. Total revenues and earnings in 1995 will be affected by both the new sales order rate during the year and the backlog of home sales contracts at the beginning of the year. As interest rates have increased during 1994, the Company has seen a slight decline in the demand for its homes and the Company is entering fiscal 1994 with a backlog of $247.0 million, which is 7% lower than at the beginning of the prior fiscal year. Revenues and earnings should be positively affected in 1995 by the activities of the Company's Investment Division as the Company has increased its investment in both partnerships and commercial properties owned directly. Inflation can have a long-term impact on the Company because increasing costs of land, materials and labor result in a need to increase the sales prices of homes. In addition, inflation is often accompanied by higher interest rates, which can have a negative impact on housing demand and the costs of financing land development activities and housing construction. In general, in recent years the increases in these costs have followed the general rate of inflation and hence have not had a significant adverse impact on the Company. GOVERNMENT REGULATIONS Governmental bodies in the areas where the Company conducts its business have adopted numerous laws and regulations that affect the development of real estate. These laws and regulations are subject to frequent change. The State of Florida has adopted a law which requires that commitments to provide roads and other offsite infrastructure be in place prior to the commencement of new construction. This law is being administered by individual counties and municipalities throughout the State and may result in additional fees and assessments, or building moratoriums. It is difficult to predict the impact of this law on future operations, or what changes may take place in the law in the future. The Company may have a competitive advantage in that it believes that most of its Florida land presently meets the criteria under the law, and it has the financial resources to provide for development of the balance of its land in compliance with the law. As a result of Hurricane Andrew, there have been changes to the various building codes within Florida. These changes have resulted in higher construction costs. The Company believes these additional costs have generally been recoverable through increased selling prices without any significant adverse effect on sales volume. FINANCIAL CONDITION AND CAPITAL RESOURCES Lennar meets its short-term financing needs with cash generated from operations and funds available under its unsecured revolving credit agreement. On July 29, 1994, the Company extended and increased the amount of its revolving credit agreement. The agreement, which is with eleven banks, provides a financing commitment of $250 million for three years. On January 31, 1995, this agreement was amended to provide a five year commitment of 17 - -------------------------------------------------------------------------------- $275 million. At November 30, 1994, there was $175.7 million outstanding under the Company's revolving credit agreement, compared to $129.7 million outstanding at the same date last year. During 1994, $101.8 million of cash was provided by the Company's operations, compared to $68.5 million used by operations in 1993. In addition to higher earnings, cash flow from operations during 1994 increased primarily as a result of cash generated from a $119.1 million reduction in loans held for sale or disposition by the Company's financial services operations. This compares to $49.7 million used in the 1993 period to increase the balance of such loans. The Company used $34.3 million during 1994 to increase inventories through land purchases, land development and construction. This compares to $87.4 million used in the 1993 period to increase inventories. Partially offsetting the increases in cash flow during the 1994 period, was cash of $13.9 million used to decrease accounts payable and accrued liabilities. This compares to $27.2 million of cash provided from an increase in accounts payable and accrued liabilities in the 1993 period. Cash used in investing activities increased to $124.2 million during 1994, compared to $57.1 million in 1993. The increase in the use of cash for investing activities was primarily the result of the purchase of additional operating properties, an increase in investments in and advances to partnerships, and the purchase of commercial mortgage-backed securities. HOMEBUILDING AND INVESTMENT OPERATIONS The Company finances its land acquisitions with its revolving lines of credit or purchase money mortgages or buys land under option agreements, which permit the Company to acquire portions of properties when it is ready to build homes on them. The financial risk of adverse market conditions associated with longer term land holdings is managed by strategic purchasing in areas that the Company has identified as desirable growth markets along with careful management of the land development process. The Company believes that its land inventories give it a competitive advantage, especially in Florida, where developers face government constraints and regulations which will limit the number of available homesites in future years. Based on its current financing capabilities, the Company does not believe that its land holdings have an adverse effect on its liquidity. The Company has supplemented its short-term borrowings with secured term loans. Total secured borrowings, which include term loan debt, as well as mortgage notes payable on certain operating properties and land, were $136.2 million at fiscal year-end 1994 and $94.7 million at November 30, 1993. A significant portion of inventories, land held for investment, model homes and operating properties remained unencumbered at the end of the current fiscal year. Total homebuilding and investment borrowings increased to $381.9 million at November 30, 1994 from $242.2 million at November 30, 1993. This increase was attributable to increases in construction in progress, land inventories, partnership investments and operating properties. FINANCIAL SERVICES Lennar Financial Services subsidiaries finance their mortgage loans held for sale on a short-term basis by either pledging them as collateral for borrowings under two lines of credit totaling $80 million or borrowing funds from Lennar Corporation in instances where, on a consolidated basis, this minimizes the overall cost of funds. The commitments under the lines of credit were decreased by the Company from $200 million at November 30, 1993, due to reduced borrowing needs. Total borrowings under the two lines of credit were $54.6 million and $167.6 million at November 30, 1994 and 1993, respectively. LFS subsidiaries sell the mortgage loans they originate within thirty to sixty days of origination. At November 30, 1994, the balance of loans held for sale or disposition was $124.3 million, compared with $243.1 million one year earlier. LIMITED-PURPOSE FINANCE SUBSIDIARIES Limited-purpose finance subsidiaries of LFS have placed mortgage loans and other receivables as collateral for various long-term financings. These subsidiaries pay the debt service on the long-term borrowings primarily from the cash flows generated by the related pledged collateral; and therefore, the related interest income and interest expense, for the most part, offset one another in each of the three years ended November 30, 1994. The Company believes that the cash flows generated by these subsidiaries will be adequate to meet the required debt payment schedules. Based on the Company's current financial condition and credit relationships, Lennar believes that its operations and borrowing resources will provide for its current and long-term capital requirements at the Company's anticipated levels of growth. 18 Consolidated Balance Sheets Lennar Corporation and Subsidiaries November 30, 1994 and 1993
(In thousands, except per share amounts) 1994 1993 - -------------------------------------------------------------------------------------------------------------------------- ASSETS HOMEBUILDING, INVESTMENT AND FINANCIAL SERVICES: Homebuilding and investment assets: Cash and cash equivalents $ 16,801 10,606 Receivables, net 48,165 53,136 Inventories: Construction in progress and model homes 175,547 175,085 Land held for development 300,488 269,449 ------------------------ Total inventories 476,035 444,534 Land held for investment 80,747 61,697 Operating properties and equipment, net 193,621 156,174 Investments in and advances to partnerships 106,637 39,410 Other assets 29,598 17,699 Financial services assets 252,195 284,391 - -------------------------------------------------------------------------------------------------------------------------- Total assets - homebuilding, investment and financial services 1,203,799 1,067,647 - -------------------------------------------------------------------------------------------------------------------------- LIMITED-PURPOSE FINANCE SUBSIDIARIES - COLLATERAL FOR BONDS AND NOTES PAYABLE 89,424 127,843 - -------------------------------------------------------------------------------------------------------------------------- $1,293,223 1,195,490 - -------------------------------------------------------------------------------------------------------------------------- LIABILITIES AND STOCKHOLDERS' EQUITY HOMEBUILDING, INVESTMENT AND FINANCIAL SERVICES: Homebuilding and investment liabilities: Accounts payable and accrued liabilities $ 102,582 79,680 Customer deposits 15,271 16,796 Income taxes: Currently payable 10,205 8,247 Deferred 50,796 59,638 Mortgage notes and other debts payable 381,901 242,193 Financial services liabilities 115,383 199,737 - -------------------------------------------------------------------------------------------------------------------------- Total liabilities - homebuilding, investment and financial services 676,138 606,291 - -------------------------------------------------------------------------------------------------------------------------- LIMITED-PURPOSE FINANCE SUBSIDIARIES - BONDS AND NOTES PAYABLE 82,997 121,726 - -------------------------------------------------------------------------------------------------------------------------- STOCKHOLDERS' EQUITY: Common stock of $.10 par value per share Authorized 100,000 shares; issued and outstanding: 1994 - 25,781; 1993 - 25,729 2,578 1,715 Class B common stock of $.10 par value per share Authorized 30,000 shares; issued and outstanding: 1994 - 9,987; 1993 - 9,987 999 666 Additional paid-in capital 169,605 170,023 Retained earnings 360,906 295,069 - -------------------------------------------------------------------------------------------------------------------------- Total stockholders' equity 534,088 467,473 - -------------------------------------------------------------------------------------------------------------------------- $1,293,223 1,195,490 - --------------------------------------------------------------------------------------------------------------------------
See accompanying notes to consolidated financial statements. 19 Consolidated Statements of Earnings Lennar Corporation and Subsidiaries Years Ended November 30, 1994, 1993 and 1992
(In thousands, except per share amounts) 1994 1993 1992 - ------------------------------------------------------------------------------------------------------------------------- REVENUES: Homebuilding $647,750 532,150 308,983 Investment 106,343 58,955 40,164 Financial services 54,348 59,204 56,723 Limited-purpose finance subsidiaries 9,485 14,355 21,164 - ------------------------------------------------------------------------------------------------------------------------- Total revenues 817,926 664,664 427,034 - ------------------------------------------------------------------------------------------------------------------------- COSTS AND EXPENSES: Homebuilding 577,105 471,943 270,920 Investment 54,439 30,458 23,172 Financial services 39,504 44,100 40,312 Limited-purpose finance subsidiaries 9,441 14,351 21,315 Corporate general and administrative 10,309 8,670 8,833 Interest 15,382 13,088 9,519 Unusual item -- -- 7,600 - ------------------------------------------------------------------------------------------------------------------------- Total costs and expenses 706,180 582,610 381,671 - ------------------------------------------------------------------------------------------------------------------------- EARNINGS BEFORE INCOME TAXES AND CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING PRINCIPLES 111,746 82,054 45,363 INCOME TAXES 43,581 29,543 16,217 - ------------------------------------------------------------------------------------------------------------------------- EARNINGS BEFORE CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING PRINCIPLES 68,165 52,511 29,146 CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING PRINCIPLES FOR: Income taxes 4,745 -- -- Purchased mortgage servicing rights (3,784) -- -- - ------------------------------------------------------------------------------------------------------------------------- NET EARNINGS $ 69,126 52,511 29,146 - ------------------------------------------------------------------------------------------------------------------------- NET EARNINGS PER SHARE: BEFORE CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING PRINCIPLES $ 1.89 1.51 .95 CUMULATIVE EFFECT OF CHANGES IN ACCOUNTING PRINCIPLES 0.03 -- -- - ------------------------------------------------------------------------------------------------------------------------- NET EARNINGS PER SHARE $ 1.92 1.51 .95 - -------------------------------------------------------------------------------------------------------------------------
See accompanying notes to consolidated financial statements. 20 Consolidated Statements of Cash Flows Lennar Corporation and Subsidiaries Years Ended November 30, 1994, 1993 and 1992
(In thousands) 1994 1993 1992 - ------------------------------------------------------------------------------------------------------------------------- CASH FLOWS FROM OPERATING ACTIVITIES: Net earnings $ 69,126 52,511 29,146 Adjustments to reconcile net earnings to net cash provided by (used in) operating activities: Depreciation and amortization 8,396 9,976 10,600 Gain on sales of other real estate (11,930) (548) (3,995) Equity in earnings of partnerships (20,710) (7,046) (385) Decrease in deferred income taxes (9,324) (2,296) (5,231) Cumulative effect of changes in accounting principles (961) -- -- Changes in assets and liabilities, net of effects from accounting changes: Increase in receivables (7,861) (16,325) (6,156) Increase in inventories (34,261) (87,439) (54,460) Decrease (increase) in financial services' loans held for sale or disposition 119,071 (49,653) (65,338) Increase (decrease) in accounts payable and accrued liabilities (13,890) 27,227 15,304 Other, net 4,153 5,126 8,256 - ------------------------------------------------------------------------------------------------------------------------- Net cash provided by (used in) operating activities 101,809 (68,467) (72,259) - ------------------------------------------------------------------------------------------------------------------------- CASH FLOWS FROM INVESTING ACTIVITIES: Operating properties and equipment: Additions (55,125) (21,366) (11,696) Sales 20,007 -- 4,613 Increase in investments in and advances to partnerships (43,639) (20,180) (21,823) Purchase of commercial mortgage-backed securities (42,890) -- -- Purchase of interest in joint ventures, net of cash acquired -- (4,782) -- Acquisitions of mortgage loan servicing rights -- -- (8,693) Other, net (2,543) (10,752) (11,186) - ------------------------------------------------------------------------------------------------------------------------- Net cash used in investing activities (124,190) (57,080) (48,785) - ------------------------------------------------------------------------------------------------------------------------- CASH FLOWS FROM FINANCING ACTIVITIES: Net borrowings under revolving credit agreement 46,000 84,800 44,900 Net borrowings (repayments) under financial services' short-term debt (113,447) 23,159 74,264 Mortgage notes and other debts payable: Proceeds from borrowings 116,940 17,241 21,351 Principal payments (23,232) (92,209) (18,479) Limited-purpose finance subsidiaries: Principal reduction of mortgage loans and other receivables 39,777 55,464 53,595 Principal reduction of bonds and notes payable (37,429) (51,667) (51,981) Common stock: Issuance 778 98,251 1,245 Dividends (3,289) (2,619) (2,299) - ------------------------------------------------------------------------------------------------------------------------- Net cash provided by financing activities 26,098 132,420 122,596 - ------------------------------------------------------------------------------------------------------------------------- Net increase in cash and cash equivalents 3,717 6,873 1,552 Cash and cash equivalents at beginning of year 14,225 7,352 5,800 - ------------------------------------------------------------------------------------------------------------------------- Cash and cash equivalents at end of year $ 17,942 14,225 7,352 - ------------------------------------------------------------------------------------------------------------------------- Summary of cash and cash equivalent balances: Homebuilding and investment $ 16,801 10,606 4,913 Financial services 1,141 3,619 2,439 - ------------------------------------------------------------------------------------------------------------------------- $ 17,942 14,225 7,352 - ------------------------------------------------------------------------------------------------------------------------- Supplemental disclosures of cash flow information: Cash paid for interest, net of amounts capitalized $ 12,303 17,692 21,322 Cash paid for income taxes $ 46,443 28,666 18,142
See accompanying notes to consolidated financial statements. 21 Consolidated Statements of Stockholders' Equity Lennar Corporation and Subsidiaries Years Ended November 30, 1994, 1993 and 1992
(In thousands) 1994 1993 1992 - ------------------------------------------------------------------------------------------------------------------------- (C> COMMON STOCK: Balance at December 1 $ 1,715 1,364 1,354 Shares issued under public offering -- 345 -- Three-for-two stock split effected in the form of a 50% stock dividend 859 -- -- Shares issued under employee stock plans 4 6 10 - ------------------------------------------------------------------------------------------------------------------------- Balance at November 30 2,578 1,715 1,364 - ------------------------------------------------------------------------------------------------------------------------- CLASS B COMMON STOCK: Balance at December 1 666 666 666 Three-for-two stock split effected in the form of a 50% stock dividend 333 -- -- - ------------------------------------------------------------------------------------------------------------------------- Balance at November 30 999 666 666 - ------------------------------------------------------------------------------------------------------------------------- ADDITIONAL PAID-IN CAPITAL: Balance at December 1 170,023 72,123 70,887 Shares issued under public offering -- 96,747 -- Three-for-two stock split effected in the form of a 50% stock dividend (1,192) -- -- Shares issued under employee stock plans 774 1,153 1,236 - ------------------------------------------------------------------------------------------------------------------------- Balance at November 30 169,605 170,023 72,123 - ------------------------------------------------------------------------------------------------------------------------- RETAINED EARNINGS: Balance at December 1 295,069 245,177 218,330 Net earnings 69,126 52,511 29,146 Cash dividends - common stock (2,448) (1,953) (1,633) Cash dividends - Class B common stock (841) (666) (666) - ------------------------------------------------------------------------------------------------------------------------- Balance at November 30 360,906 295,069 245,177 - ------------------------------------------------------------------------------------------------------------------------- Total stockholders' equity $534,088 467,473 319,330 - -------------------------------------------------------------------------------------------------------------------------
See accompanying notes to consolidated financial statements. 22 Notes to Consolidated Financial Statements Lennar Corporation and Subsidiaries November 30, 1994, 1993 and 1992 - -------------------------------------------------------------------------------- 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES BASIS OF CONSOLIDATION The accompanying consolidated financial statements include the accounts of Lennar Corporation and all wholly-owned subsidiaries (the 'Company'). The Company's investments in partnerships are accounted for by the equity method. All significant intercompany transactions and balances have been eliminated. REVENUE RECOGNITION Revenues from sales of homes are recognized when the sales are closed and title passes to the new homeowners. Revenues from sales of other real estate (including the sales of land and operating properties) are recognized when a significant down payment is received, the earnings process is complete and the collection of any remaining receivables is reasonably assured. CASH AND CASH EQUIVALENTS The Company considers all highly liquid investments purchased with a maturity of three months or less to be cash equivalents. Due to the short maturity period of the cash equivalents, the carrying amount of these instruments approximates their fair values. INVENTORIES Inventories are stated at the lower of accumulated costs or net realizable value. Net realizable value is evaluated at the community level and is defined as the estimated proceeds upon disposition less all future costs to complete and sell. Inventory adjustments to net realizable value in 1994, 1993 and 1992 were not material to the Company. Start-up costs, construction overhead and selling expenses are expensed as incurred. Homes held for sale are classified as construction in progress until delivered. Land, land development, amenities and other costs are accumulated by specific area and allocated proportionately to homes within the respective area. INTEREST AND REAL ESTATE TAXES Interest and real estate taxes attributable to land, homes and operating properties are capitalized and added to the cost of those properties as long as the properties are being actively developed. Interest expenses relating to the financial services operations and limited-purpose finance subsidiaries are included in their respective costs and expenses. Interest related to non-financial services operations, including interest costs relieved from inventories, is included in interest expense. During 1994, 1993 and 1992 interest costs of $25.0 million, $19.7 million and $16.8 million, respectively, (excluding the limited-purpose finance subsidiaries) were incurred, and $22.1 million, $17.1 million and $15.0 million, respectively, were capitalized by the Company's homebuilding and investment operations. Previously capitalized interest charged to expense in 1994, 1993 and 1992, was $15.4 million, $13.1 million and $9.5 million, respectively. OPERATING PROPERTIES AND EQUIPMENT Operating properties and equipment are recorded at cost. Depreciation is calculated to amortize the cost of depreciable assets over their estimated useful lives using the straight-line method. The range of estimated useful lives for operating properties is 15 to 40 years and for equipment is 2 to 10 years. WARRANTIES Warranty liabilities are not significant as the Company subcontracts virtually all segments of construction to others and its contracts call for the subcontractors to repair or replace any deficient items related to their trade. Extended warranties are offered in some communities through independent homeowner warranty insurance companies. The costs of these warranties are fixed to the Company and are expensed in the period the homes are delivered. INCOME TAXES The Company and its subsidiaries file a consolidated federal income tax return. In February 1992, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards ('SFAS') No. 109, 'Accounting for Income Taxes'. SFAS No. 109 requires a change from the deferred method of accounting for income taxes of Accounting Principles Board Opinion ('APB') No. 11 to the asset and liability method of accounting for income taxes. Under the asset and liability method of SFAS No. 109, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under SFAS No. 109, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in 23 Notes to Consolidated Financial Statements Lennar Corporation and Subsidiaries November 30, 1994, 1993 and 1992 - -------------------------------------------------------------------------------- 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) income in the period that includes the enactment date. Effective December 1, 1993, the Company adopted SFAS No. 109 and has reported the cumulative effect of that change in the method of accounting for income taxes in the 1994 consolidated statement of earnings. Pursuant to the deferred method under APB No. 11, which was applied in 1993 and prior years, deferred income taxes were recognized for income and expense items that were reported in different years for financial reporting purposes and income tax purposes using the tax rate applicable for the year of the calculation. Under the deferred method, deferred taxes are not adjusted for subsequent changes in tax rates. NET EARNINGS PER SHARE Net earnings per share is calculated by dividing net earnings by the weighted average number of the total of common shares, Class B common shares and common share equivalents outstanding during each year. The weighted average number of shares outstanding was 36,086,000, 34,709,000 and 30,743,000 in 1994, 1993 and 1992, respectively. FINANCIAL SERVICES Mortgage loans held for sale or disposition by Lennar Financial Services, Inc. ('LFS') are recorded at the lower of cost or market, as determined on an aggregate basis. Discounts recorded on these loans are presented as a reduction of the carrying amount of the loans and are not amortized. LFS enters into forward sales and option contracts to protect the value of loans held for sale or disposition from increases in market interest rates. Adjustments are made to these loans based on changes in the market value of these hedging contracts. When LFS sells loans or mortgage-backed securities in the secondary market, a gain or loss is recognized to the extent that the sales proceeds exceed, or are less than, the book value of the loans or the securities. Loan origination fees, net of direct origination costs, are deferred and recognized as a component of the gain or loss when loans are sold. LFS generally retains the servicing on the loans and mortgage-backed securities it sells. LFS recognizes servicing fee income as those services are performed. FAIR VALUE OF FINANCIAL INSTRUMENTS Statement of Financial Accounting Standards No. 107, 'Disclosures about Fair Value of Financial Instruments', requires companies to disclose the estimated fair value of their financial instrument assets and liabilities. The estimated fair values have been determined by the Company using available market information and appropriate valuation methodologies. The fair values are significantly affected by the assumptions used including the discount rate and estimates of cash flow. Accordingly, the use of different assumptions may have a material effect on the estimated fair values. The estimated fair values presented herein are not necessarily indicative of the amounts the Company could realize in a current market exchange. RECLASSIFICATION Certain prior year amounts in the consolidated financial statements have been reclassified to conform with the 1994 presentation. 2. BUSINESS SEGMENTS The Company has three business segments: Homebuilding, Investment and Financial Services. The limited-purpose finance subsidiaries are not considered a business segment and are not included in the following tables. 24 - -------------------------------------------------------------------------------- 2. BUSINESS SEGMENTS (CONTINUED) HOMEBUILDING Homebuilding operations include the construction and sale of single-family and multi-family homes. These activities also include the purchase, development and sale of residential land. The following table sets forth financial information relating to the homebuilding operations: Years Ended November 30, (In thousands) 1994 1993 1992 - ----------------------------------------------------------- REVENUES: Sales of homes $626,341 513,503 300,789 Other 21,409 18,647 8,194 - ----------------------------------------------------------- Total revenues 647,750 532,150 308,983 COSTS AND EXPENSES: Cost of homes sold 498,132 400,159 230,249 Cost of other revenues 15,769 16,302 4,422 Selling, general & administrative 63,204 55,482 36,249 - ----------------------------------------------------------- Total costs and expenses 577,105 471,943 270,920 - ----------------------------------------------------------- OPERATING EARNINGS $ 70,645 60,207 38,063 - ----------------------------------------------------------- IDENTIFIABLE ASSETS $531,330 500,507 368,212 - ----------------------------------------------------------- DEPRECIATION AND AMORTIZATION $ 1,522 1,037 786 - ----------------------------------------------------------- INVESTMENT The Investment Division is involved in the development, management and leasing, as well as the acquisition and sale, of commercial and residential properties and land. This division also manages and participates in partnerships with financial institutions. The following table sets forth financial information relating to the Investment Division's operations: Years Ended November 30, (In thousands) 1994 1993 1992 - ----------------------------------------------------------- REVENUES: Rental income $ 43,487 37,708 30,488 Equity in earnings of partnerships 20,710 7,046 385 Management fees 12,390 6,714 2,410 Sales of real estate 21,518 45 4,866 Other 8,238 7,442 2,015 - ----------------------------------------------------------- Total revenues 106,343 58,955 40,164 COST OF SALES AND EXPENSES 54,439 30,458 23,172 - ----------------------------------------------------------- OPERATING EARNINGS $ 51,904 28,497 16,992 - ----------------------------------------------------------- IDENTIFIABLE ASSETS $411,366 281,883 189,177 - ----------------------------------------------------------- CAPITAL EXPENDITURES $ 53,646 42,102 10,890 - ----------------------------------------------------------- DEPRECIATION AND AMORTIZATION $ 5,010 4,130 3,595 - ----------------------------------------------------------- FINANCIAL SERVICES Financial services activities are conducted primarily through Lennar Financial Services ('LFS') and five subsidiaries: Universal American Mortgage Company ('UAMC'), AmeriStar Financial Services, Inc., Universal Title Insurers, Inc., Lennar Funding Corporation and TitleAmerica, Inc. These companies arrange mortgage financing, title insurance and closing services for Lennar homebuyers and others, acquire, package and resell home mortgage loans and perform mortgage loan servicing activities. The following table sets forth 25 Notes to Consolidated Financial Statements Lennar Corporation and Subsidiaries November 30, 1994, 1993 and 1992 - -------------------------------------------------------------------------------- 2. BUSINESS SEGMENTS (CONTINUED) financial information relating to the financial services operations: Years Ended November 30, (In thousands) 1994 1993 1992 - ----------------------------------------------------------- REVENUES $ 54,348 59,204 56,723 COSTS AND EXPENSES 39,504 44,100 40,312 INTERCOMPANY INTEREST EXPENSE* 3,144 2,244 2,394 - ----------------------------------------------------------- OPERATING EARNINGS $ 11,700 12,860 14,017 - ----------------------------------------------------------- IDENTIFIABLE ASSETS $252,195 284,391 238,731 - ----------------------------------------------------------- DEPRECIATION AND AMORTIZATION $ 1,450 4,886 4,734 - ----------------------------------------------------------- * Intercompany interest expense is reflected above to show interest expense on intercompany debt of the financial services operations. 3. STOCK SPLIT All references in the consolidated financial statements and notes to the number of shares outstanding and per share amounts have been restated to reflect a three-for-two stock split effective April 20, 1994. 4. UNUSUAL ITEM On August 24, 1992, the South Florida area was hit by a severe hurricane which affected a portion of the Company's Dade County real estate operations. The results of operations for the year ended November 30, 1992 include an unusual charge of $7.6 million, before income taxes, representing the cost of the damage to inventories and other costs associated with the destruction caused by Hurricane Andrew. 5. ACCOUNTING CHANGES Effective December 1, 1993, the Company adopted the provisions of SFAS No. 109, 'Accounting for Income Taxes'. This change in accounting principle resulted in an increase to net earnings of $4.7 million in the first quarter of 1994. The change in accounting for income taxes did not have a significant effect on the Company's results of operations. The first quarter of 1994 also included a charge of $3.8 million (net of income tax effect of $2.4 million) for the cumulative effect on prior years of a change in accounting for purchased mortgage servicing rights. During the first quarter of 1994, the Company changed the way in which it evaluates these assets for impairment from an undiscounted and disaggregated cash flow basis to a discounted and disaggregated cash flow basis. Excluding the cumulative effect, this change increased net earnings in the year ended November 30, 1994 by $1.4 million. 6. RESTRICTED CASH Cash includes restricted deposits of $3.7 million and $4.2 million as of November 30, 1994 and 1993, respectively. These balances are comprised primarily of escrow deposits held related to condominium purchases and security deposits from tenants of commercial and apartment properties. 7. SUMMARY OF NON-CASH INVESTING AND FINANCING ACTIVITIES During 1994, the Company's financial services operations acquired commercial mortgage-backed securities for $72.4 million. Of this amount, $25.4 million was paid in cash and the balance of $47.0 million was financed by the sellers. During 1993, the Company acquired a portfolio of loans from the Resolution Trust Corporation for $24.8 million. Of this amount, $5.0 million was paid in cash and the Company issued a non-recourse note in the amount of $19.8 million for the remainder. Also, during 1993, the Company purchased the other partners' interests in three of its joint ventures. As a result, the operations of these ventures were consolidated into the accounts of the Company as of the respective dates of acquisition. The net result of these transactions was to decrease investments in and advances to partnerships by $34.9 million, increase all other assets by $73.7 million and increase liabilities by $38.8 million. 26 - -------------------------------------------------------------------------------- 8. RECEIVABLES November 30, (In thousands) 1994 1993 - ------------------------------------------------------------ Accounts and unsecured notes $31,253 27,844 Secured notes 20,801 27,876 - ------------------------------------------------------------ 52,054 55,720 Allowance for doubtful accounts (1,528) (1,323 ) Deferred income and unamortized discounts (2,361) (1,261 ) - ------------------------------------------------------------ $48,165 53,136 - ------------------------------------------------------------ The estimated fair values of receivables at November 30, 1994 and 1993 approximated their carrying values. 9. INVESTMENTS IN AND ADVANCES TO PARTNERSHIPS Summarized financial information on a combined 100% basis related to the Company's significant partnerships and joint ventures accounted for by the equity method follows: November 30, (In thousands) 1994 1993 - ------------------------------------------------------------ ASSETS: Cash $ 96,046 49,785 Portfolio investments 1,286,375 1,052,897 Other assets 61,722 12,995 - ------------------------------------------------------------ $1,444,143 1,115,677 - ------------------------------------------------------------ LIABILITIES AND EQUITY: Accounts payable and other liabilities $ 93,943 30,353 Notes and mortgages payable 737,344 753,639 Equity of: The Company 105,537 38,450 Others 507,319 293,235 - ------------------------------------------------------------ $1,444,143 1,115,677 - ------------------------------------------------------------ Portfolio investments consist primarily of mortgage loans and business loans collateralized by real property, as well as commercial properties and land held for investment or sale. Years Ended November 30, (In thousands) 1994 1993 1992 - ----------------------------------------------------------- Revenues $246,236 112,692 38,576 Cost of revenues 68,629 52,060 27,536 Other expenses 60,155 26,593 9,714 - ----------------------------------------------------------- Pre-tax earnings of partnerships $117,452 34,039 1,326 - ----------------------------------------------------------- The Company's share of pre-tax earnings $ 20,710 7,046 385 - ----------------------------------------------------------- The Company's investment in partnerships consists primarily of its Investment Division partnerships. The Company's equity interests in these partnerships range from 9.9% to 50%. The partnerships are involved in the acquisition and management of portfolios of real estate loans and assets. The Company shares in the profits and losses of these partnerships and, as the manager of the partnerships, receives fees for the management and disposition of the assets. The outstanding debt of these partnerships is not guaranteed by the Company. During 1993, the Company acquired the other partners' interest in three of its joint ventures. As a result, the operations of these ventures have been consolidated into the accounts of the Company as of the respective dates of acquisition. 27 Notes to Consolidated Financial Statements Lennar Corporation and Subsidiaries November 30, 1994, 1993 and 1992 - -------------------------------------------------------------------------------- 10. OPERATING PROPERTIES AND EQUIPMENT
November 30, (In thousands) 1994 1993 - -------------------------------------------------------------------------------------------------------------------------- Rental apartment properties $ 66,818 68,538 Retail centers 62,639 45,031 Office buildings 41,740 18,939 Community recreational facilities 14,207 19,972 Other 30,452 22,664 - -------------------------------------------------------------------------------------------------------------------------- Total land and buildings 215,856 175,144 Furniture, fixtures and equipment 9,790 9,811 - -------------------------------------------------------------------------------------------------------------------------- Total 225,646 184,955 Accumulated depreciation (32,025) (28,781 ) - -------------------------------------------------------------------------------------------------------------------------- $193,621 156,174 - --------------------------------------------------------------------------------------------------------------------------
11. MORTGAGE NOTES AND OTHER DEBTS PAYABLE
November 30, (Dollars in thousands) 1994 1993 - -------------------------------------------------------------------------------------------------------------------------- Secured without recourse to the Company: Mortgage notes on operating properties and land with fixed interest rates from 7.4% to 9.5%, due through 2003 $ 25,169 3,617 Other secured debt: Term loan notes with floating interest rates (6.1% to 6.4% at November 30, 1994), secured by certain real estate and operating properties, due in 1996 50,000 50,000 Mortgage notes on operating properties and land with interest rates from 3.5% to 8.3%, due through 2015 61,057 41,072 Unsecured revolving credit notes payable, with floating interest rates 175,700 129,700 Unsecured term loan note with floating interest rate (6.7% at November 30, 1994), due in 1995 56,475 -- Other notes payable with floating interest rates (6.8% at November 30, 1994), due in 1995 13,500 17,804 - -------------------------------------------------------------------------------------------------------------------------- $381,901 242,193 - --------------------------------------------------------------------------------------------------------------------------
On July 29, 1994, the Company extended and increased the amount of its revolving credit agreement. The term of the agreement is three years. The commitment was increased to $250 million and includes eleven banks. On every anniversary date of the agreement each bank has the option to participate in a one year extension. The interest rate under this agreement fluctuates with market rates and was 6.77% at November 30, 1994. In January 1995, this agreement was amended to provide a five year commitment of $275 million. At November 30, 1994, the Company was party to an interest rate swap agreement which replaced the floating interest rate on $20 million of debt, with a fixed rate of 8.7%. This agreement will expire in 1996. The minimum aggregate principal maturities of mortgage notes and other debts payable during the five years subsequent to November 30, 1994, assuming that the revolving credit agreement was not extended, are as follows (in thousands): 1995-$71,472; 1996-$51,927; 1997-$185,529; 1998-$24,492 and 1999-$1,005. All of the notes secured by land contain collateral release provisions for accelerated payment which may be made as necessary to maintain construction schedules. The fair values of interest rate swap agreements at November 30, 1994 and 1993 were $300 thousand and $3.5 million, respectively. The estimated fair values represent a net unrealized loss. The values were based on dealer quotes and generally represent 28 - -------------------------------------------------------------------------------- 11. MORTGAGE NOTES AND OTHER DEBTS PAYABLE (CONTINUED) an estimate of the amount the Company would pay to terminate the agreements at the reporting dates, taking into account current interest rates and the credit worthiness of the counterparties. The fair values of the Company's fixed rate borrowings were estimated using discounted cash flow analyses, based on the Company's current incremental borrowing rates of similar types of borrowing arrangements. The fair values of these borrowings at November 30, 1994 and 1993 approximated their carrying values. The interest rates on variable rate borrowings are tied to market indices. Accordingly, fair values approximate their carrying values. 12. FINANCIAL SERVICES The assets and liabilities related to the Company's financial services operations (as described in Note 2) are summarized as follows: November 30, (In thousands) 1994 1993 - ------------------------------------------------------------ ASSETS: Loans held for sale or disposition, net $124,324 243,095 Loans and mortgage-backed securities held for investment, net 107,989 15,746 Cash and receivables, net 11,579 9,949 Servicing acquisition costs 3,949 12,249 Other 4,354 3,352 - ------------------------------------------------------------ $252,195 284,391 - ------------------------------------------------------------ LIABILITIES: Notes and other debts payable $101,414 167,561 Other 13,969 32,176 - ------------------------------------------------------------ $115,383 199,737 - ------------------------------------------------------------ The Financial Services Division finances its activities through its two bank lines of credit, borrowings under short-term repurchase agreements, or borrowings from Lennar Corporation, when on a consolidated basis the Company can minimize its cost of funds. The two lines of credit provide for aggregate borrowings of $80 million, expiring in June and July 1995, unless otherwise extended. The commitments under these agreements were decreased by the Company from $200 million at November 30, 1993, due to reduced borrowing needs. Borrowings under these agreements were $54.6 million and $167.6 million at November 30, 1994 and 1993, respectively, and were collateralized by mortgage loans with outstanding principal balances of $57.9 million and $155.9 million, respectively, and by servicing rights to approximately $1.6 billion and $2.2 billion, respectively, of loans serviced by LFS. There are several interest rate pricing options which fluctuate with market rates. The borrowing rate has been reduced to the extent that custodial escrow balances exceeded required levels. The effective interest rate on these agreements at November 30, 1994 was 1.09%. The Financial Services Division utilizes short-term financing arrangements to sell mortgage-backed securities under agreements to repurchase them with securities dealers in the business of providing such financing. At November 30, 1994, repurchase agreements outstanding totaled $46.8 million, and had a weighted average borrowing rate of 6.5%. Repurchase agreements generally mature within 30 days. The repurchase agreements were collateralized by mortgage-backed securities with an aggregate carrying value of $62.7 million. All mortgage- backed securities underlying repurchase agreements are held in safekeeping by the securities dealer providing the financing, and all agreements are to repurchase the same or substantially identical mortgage-backed securities. The Financial Services Division is party to financial instruments in the management of its exposure to interest rate fluctuations. Forward sales contracts and options are used by the division to hedge mortgage loans held for sale and in its pipeline of loan applications in process. By hedging in the instruments that the division will create, market interest rate risk is reduced. Gains and losses on these hedging transactions have not been material to the Company. Exposure to credit risk is managed through evaluation of trading partners, limits of exposure and monitoring procedures. At November 30, 1994 and 1993, the Financial Services Division was a party to approximately $81 million and $212 million, respectively, of forward sales contracts and options. Certain of the division's servicing agreements require it to pass through payments on loans even though it is unable to collect such payments and, in 29 Notes to Consolidated Financial Statements Lennar Corporation and Subsidiaries November 30, 1994, 1993 and 1992 - -------------------------------------------------------------------------------- 12. FINANCIAL SERVICES (CONTINUED) certain instances, be responsible for losses incurred through foreclosure. Exposure to this credit risk is minimized through geographic diversification and review of the mortgage loan servicing created or purchased. Management believes that it has provided adequate reserves for expected losses based on the net realizable value of the underlying collateral. Provisions for these losses have not been material to the Company. The division is also subject to prepayment risk on the servicing portfolio. Exposure to prepayment risk is managed by the division's ongoing evaluation of prepayment possibilities. The fair values of loans held for sale at November 30, 1994 and 1993 approximated their carrying values. The fair values were based on quoted market prices for securities backed by similar loans, adjusted for differences in loan characteristics, net of the difference between the settlement values and the quoted market values of forward commitments and options to buy and sell mortgage-backed securities. The fair values of loans and mortgage-backed securities held for investment at November 30, 1994 and 1993 were $109.4 million and $15.7 million, respectively, and were based on quoted market prices for similar securities. 13. LIMITED-PURPOSE FINANCE SUBSIDIARIES In prior years, limited-purpose finance subsidiaries of LFS placed mortgages and other receivables as collateral for various long-term financings. These limited-purpose finance subsidiaries pay the principal of, and interest on, these financings primarily from the cash flows generated by the related pledged collateral which includes a combination of mortgage notes, mortgage-backed securities and funds held by trustee. The fair values of the collateral for the bonds and notes payable at November 30, 1994 and 1993 were $92.1 million and $136.3 million, respectively, and were based on quoted market prices for similar securities. BONDS AND NOTES PAYABLE At November 30, 1994 and 1993, the balances outstanding for the bonds and notes payable were $83.0 million and $121.7 million, respectively. The borrowings mature in years 2013 through 2018 and carry interest rates ranging from 5.0% to 14.3%. The annual principal repayments are dependent upon collections on the underlying mortgages, including prepayments, and cannot be reasonably determined. The fair values of the bonds and notes payable at November 30, 1994 and 1993, were $84.0 million and $128.4 million, respectively, and were based on quoted market prices for similar securities. 14. INCOME TAXES The provisions (benefits) for income taxes consist of the following: Years Ended November 30, (In thousands) 1994 1993 1992 - ----------------------------------------------------------- Current: Federal $44,092 28,620 18,978 State 8,337 5,400 3,584 - ----------------------------------------------------------- 52,429 34,020 22,562 - ----------------------------------------------------------- Deferred: Federal (7,443) (4,013) (5,339) State (1,405) (464) (1,006) - ----------------------------------------------------------- (8,848) (4,477) (6,345) - ----------------------------------------------------------- Total expense $43,581 29,543 16,217 - ----------------------------------------------------------- Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of the assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The tax effects of significant temporary differences which comprise the net deferred tax liability as of November 30, 1994 are as follows (in thousands): Deferred tax liabilities: Capitalized expenses $36,447 Acquisition adjustments 15,913 Deferred gains 13,307 Installment sales 5,801 Other 2,592 - ------------------------------------------------------------ Total deferred tax liabilities 74,060 - ------------------------------------------------------------ Deferred tax assets: Reserves and accruals not currently deductible 16,409 Investment in partnerships 6,185 Other 2,559 - ------------------------------------------------------------ Total deferred tax assets 25,153 - ------------------------------------------------------------ Net deferred tax liability $48,907 - ------------------------------------------------------------ 30 - -------------------------------------------------------------------------------- 14. INCOME TAXES (CONTINUED) At November 30, 1994, the Financial Services Division and the limited-purpose finance subsidiaries had a net deferred tax asset of $1.9 million. For the years ended November 30, 1993 and 1992, the deferred income tax credit of $4.5 million and $6.3 million, respectively, results from timing differences in the recognition of income and expenses for income tax and financial reporting purposes. The sources and tax effects of those timing differences are presented below:
Income Tax Expense (Credit) ---------------------------- (In thousands) 1993 1992 - --------------------------------------------------------------------------------------------------------------------------- Installment and deferred profit recognition on sales of real estate $(2,947) (7,751) Capitalized expenses (2,216) (535) Tax expense in excess of book deductions on general and administrative expenses 484 889 Net change in financial services loan loss reserve 428 (551) Recognition of joint venture income 318 937 Deferred profit resulting from like-kind exchange -- 1,558 Other, net (544) (892) - --------------------------------------------------------------------------------------------------------------------------- Total $(4,477) (6,345) - ---------------------------------------------------------------------------------------------------------------------------
A reconciliation of the statutory rate with the effective tax rate follows:
% of Pre-tax Income --------------------------- 1994 1993 1992 - -------------------------------------------------------------------------------------------------------------------------- Statutory rate 35.0 35.0 34.0 State income taxes, net of federal income tax benefit 4.0 3.9 3.8 Other -- (2.9) (2.1) - -------------------------------------------------------------------------------------------------------------------------- Effective rate 39.0 36.0 35.7 - --------------------------------------------------------------------------------------------------------------------------
15. CAPITAL STOCK COMMON STOCK The Company has two classes of common stock. The common stockholders have one vote for each share owned, in matters requiring stockholder approval, and during 1994 received dividends of $.02 per share in the first quarter and $.025 per share in each of the other quarters. Class B common stockholders have ten votes for each share of stock owned and during 1994 received dividends of $.0167 per share in the first quarter and $.0225 per share in each of the other quarters. As of November 30, 1994, Mr. Leonard Miller, Chairman of the Board and President of the Company, owned or controlled 9.9 million shares of Class B common stock, which represents approximately 79% voting control of the Company. STOCK OPTION PLANS The Lennar Corporation 1980 Stock Option Plan ('1980 Plan') expired on December 8, 1990. However, under the terms of the 1980 Plan, certain options granted prior to the plan termination date are still outstanding. Unless exercised or cancelled, the last options granted under the 1980 Plan will expire in December 1995. 31 Notes to Consolidated Financial Statements Lennar Corporation and Subsidiaries November 30, 1994, 1993 and 1992 - -------------------------------------------------------------------------------- 15. CAPITAL STOCK (CONTINUED) The following table summarizes the status of the 1980 Plan:
1994 1993 1992 - --------------------------------------------------------------------------------------------------------------------------- Option shares exercised 27,600 83,250 110,325 Option price per share exercised (range) $4.33 - 7.09 4.33 - 7.09 4.33 - 7.09 Shares under option 52,650 84,000 175,875 Option price per share (range) $4.33 - 6.57 4.33 - 7.09 4.33 - 7.09 Shares under option - exercisable 34,650 21,750 51,000 - ---------------------------------------------------------------------------------------------------------------------------
The Lennar Corporation 1991 Stock Option Plan ('1991 Plan') provides for the granting of options to certain key employees of the Company to purchase shares at prices not less than market value as of the date of the grant. No options granted under the 1991 Plan may be exercisable until at least six months after the date of the grant. Thereafter, exercises are permitted in varying installments, on a cumulative basis. Each stock option granted will expire on a date determined at the time of the grant, but not more than 10 years after the date of the grant. The following table summarizes the status of the 1991 Plan:
1994 1993 1992 - -------------------------------------------------------------------------------------------------------------------------- Option shares exercised 10,650 17,550 8,550 Option price per share exercised (range) $7.71 - 14.37 6.54 - 11.17 7.71 Shares under option 958,750 984,900 804,450 Option price per share (range) $6.54 - 22.55 6.54 - 22.55 6.54 - 17.84 Shares under option - exercisable 147,187 79,875 31,350 - --------------------------------------------------------------------------------------------------------------------------
EMPLOYEE STOCK OWNERSHIP/401(K) PLAN The Employee Stock Ownership / 401(k) Plan ('Plan') provides shares of stock to employees who have completed one year of continuous service with the Company. All contributions for employees with five years or more of service are fully vested. The Plan was amended in 1989 to add a cash or deferred program under Section 401(k) of the Internal Revenue Code. Under the 401(k) portion of the Plan, employees may make contributions which are invested on their behalf, and the Company may also make contributions for the benefit of employees. The Company records as compensation expense an amount which approximates the vesting of the contributions to the Employee Stock Ownership portion of the Plan, as well as the Company's contribution to the 401(k) portion of the Plan. This amount was (in thousands): $625 in 1994, $361 in 1993 and $366 in 1992. In 1994, 1993 and 1992, 22,249, 13,800 and 59 shares, respectively, were contributed to participants' accounts. Additionally, in 1992, 13,074 shares were credited to participants' accounts from previously forfeited shares. RESTRICTIONS ON PAYMENT OF DIVIDENDS Other than as required to maintain the financial ratios and net worth requirements under the revolving credit and term loan agreements, there are no restrictions on the payment of common stock dividends by the Company. The cash dividends paid with regard to a share of Class B common stock in a calendar year may not be more than 90% of the cash dividends paid with regard to a share of common stock in that calendar year. Furthermore, there are no agreements which restrict the payment of dividends by subsidiaries to the Company. 16. COMMITMENTS AND CONTINGENT LIABILITIES The Company and certain subsidiaries are parties to various claims, legal actions and complaints arising in the ordinary course of business. In the opinion of management, the disposition of these matters will not have a material adverse effect on the financial condition of the Company. During 1993 and 1994, the Company settled two lawsuits and a number of claims in which owners of approximately 675 homes built by the Company sought damages as a result of Hurricane Andrew. Other homeowners or homeowners' insurers are not 32 - -------------------------------------------------------------------------------- 16. COMMITMENTS AND CONTINGENT LIABILITIES (CONTINUED) precluded from making similar claims against the Company. Five insurance companies have contacted the Company seeking reimbursement for sums paid by them with regard to homes built by the Company and damaged by the storm. The Company has settled all outstanding claims with four of these insurance companies which represented the majority of the claims made. In addition to the claims, there are three pending lawsuits in which homeowners or homeowners' insurers seek damages. Other claims of this type may be asserted. The Company's insurers have asserted that their policies cover some, but not all aspects of these claims. However, to date, the Company's insurers have made all payments required under settlements. Even if the Company were required to make any payments with regard to Hurricane Andrew related claims, the Company believes that the amount it would pay would not be material. The Company is subject to the usual obligations associated with entering into contracts for the purchase, development and sale of real estate in the routine conduct of its business. The Company is committed, under various letters of credit, to perform certain development and construction activities and provide certain guarantees in the normal course of business. Outstanding letters of credit under these arrangements totaled approximately $58.4 million at November 30, 1994. - -------------------------------------------------------------------------------- 17. QUARTERLY DATA (UNAUDITED)
(In thousands, except per share amounts) First Second Third Fourth - ------------------------------------------------------------------------------------------------------------------------ 1994 Revenues $191,826 207,318 199,424 219,358 Earnings before income taxes and cumulative effect of changes in accounting principles $ 24,184 29,543 30,255 27,764 Earnings before cumulative effect of changes in accounting principles $ 14,752 18,021 18,456 16,936 Net earnings $ 15,713 18,021 18,456 16,936 Net earnings per share before cumulative effect of changes in accounting principles $ .41 .50 .51 .47 Net earnings per share $ .44 .50 .51 .47 - ------------------------------------------------------------------------------------------------------------------------ 1993 Revenues $116,971 141,333 166,500 239,860 Earnings before income taxes $ 14,182 16,806 19,372 31,694 Net earnings $ 9,005 10,672 12,011 20,823 Net earnings per share $ .29 .30 .33 .58 - ------------------------------------------------------------------------------------------------------------------------
Quarterly and year-to-date computations of per share amounts are made independently. Therefore, the sum of per share amounts for the quarters may not agree with per share amounts for the year. 33 Shareholder Information Lennar Corporation and Subsidiaries ANNUAL MEETING The Annual Stockholders' Meeting will be held at 11:00 a.m. on April 4, 1995, at the Doral Park Golf and Country Club, 5001 N.W. 104th Avenue, Miami, Florida REGISTRAR AND TRANSFER AGENT First Union National Bank Two First Union Center Charlotte, NC 28288 LISTING New York Stock Exchange (LEN) GENERAL COUNSEL Robert B. Cole, Esq. 700 N.W. 107th Avenue Miami, Florida 33172 INDEPENDENT AUDITORS Deloitte & Touche LLP 100 Southeast Second Street Miami, Florida 33131 FORM 10-K AVAILABLE A copy of the Company's Annual Report on Form 10-K as filed with the Securities and Exchange Commission is available without charge to any stockholder upon written request to: Corporate Relations Lennar Corporation 700 N.W. 107th Avenue Miami, Florida 33172 Telephone: 305-559-4000 COMPARATIVE COMMON STOCK DATA - --------------------------------------------------------------------------------
COMMON STOCK PRICES CASH DIVIDENDS NEW YORK STOCK EXCHANGE PER SHARE - ------------------------------------------------------------------------------------------------------------ FISCAL HIGH/LOW PRICE COMMON STOCK CLASS B QUARTER 1994 1993 1994 1993 1994 1993 - ------------------------------------------------------------------------------------------------------------ First $25.17 - 19.92 $22.17 - 17.33 2 cents 2 cents 1 2/3 cents 1 2/3 cents Second 23.50 - 17.88 23.00 - 18.00 2 1/2 cents 2 cents 2 1/4 cents 1 2/3 cents Third 22.00 - 17.88 22.58 - 18.08 2 1/2 cents 2 cents 2 1/4 cents 1 2/3 cents Fourth 20.75 - 14.25 24.00 - 19.17 2 1/2 cents 2 cents 2 1/4 cents 1 2/3 cents - ------------------------------------------------------------------------------------------------------------
As of November 30, 1994, there were approximately 1,000 holders of record of the Company's common stock. 34 EX-21 5 LENNAR CORPORATION AND SUBSIDIARIES EXHIBIT 21 LENNAR CORPORATION AND SUBSIDIARIES STATE OF INCORPORATION LENNAR CORPORATION Delaware SUBSIDIARIES: Adjustable Mortgage Finance Corporation Florida Ameristar Financial Services, Inc. California Atlantic Holdings, Inc. Louisiana Bert L. Smokler & Company Delaware Boca Greens, Inc. Florida Boca Isles Club, Inc. Florida Boca Isles South Club, Inc. Florida Club Pembroke Isles, Inc. Florida DCA Acceptance Corporation Florida DCA at Banyan Tree, Inc. Florida DCA at North Lauderdale, Inc. Florida DCA at Pembroke Pointe, Inc. Florida DCA at Wiggins Bay, Inc. Florida DCA Builder Issuer, Inc. Florida DCA CML Acceptance, Inc. Florida DCA Financial Corporation Florida DCA General Contractors, Inc. Florida DCA Homes, Inc. Florida DCA Homes of Central Florida, Inc. Florida DCA Management Corporation Florida DCA NJ Realty, Inc. New Jersey DCA of Broward County, Inc. Florida DCA of Fort Worth, Inc. Texas DCA of Hialeah, Inc. Florida DCA of Lake Worth, Inc. Florida DCA of New Jersey, Inc. New Jersey DCA of Texas, Inc. Texas DCA of West Virginia, Inc. West Virginia DCA Oil of Texas, Inc. Texas Devco Land Corp. Florida Devco Shopping Centers, Inc. Florida Development Corporation of America Florida Dreyfus Interstate Development Corp., The Delaware Dyeing & Finishing, Inc. Florida First Atlantic Building Corp. Florida H. Miller & Sons Inc. Florida H. Miller & Sons of Florida, Inc. Florida HMS Realty, Inc. Florida Hillside, Inc. Florida Inactive Corporations, Inc. Florida Institutional Mortgages, Inc. Florida Kings Isle Recreation Corp. Florida LC Financial Corporation Florida LCP-II Holdings, Inc. Florida Leisure Colony Management Corp. Florida Leisure Communities Management, Inc. Florida Len Acquisition Corporation Florida Lennar Affiliate Purchaser Corporation Florida Lennar Atlantic Holdings, Inc. Florida Lennar Central Holdings, Inc. Florida Lennar Commercial Properties, Inc. Florida Lennar Communities Development, Inc. Delaware Lennar Corporate Center, Inc. Florida Lennar Eastern Holdings, Inc. Florida Lennar Financial Services, Inc. Florida Lennar Florida Holdings, Inc. Florida Lennar Funding Corporation Florida Lennar Gotham Holdings, Inc. Florida Lennar Homes of Arizona, Inc. Arizona Lennar Homes of Texas, Inc. Texas Lennar Homes, Inc. Florida Lennar L.W. Assets, Inc. Florida Lennar Management Corporation Florida Lennar Metro Holdings, Inc. Florida Lennar Mortgage Holdings Corporation Florida Lennar Mote Ranch, Inc. Florida Lennar Northeast Holdings, Inc. Florida Lennar Park J.V., Inc. Florida Lennar Partners, Inc. Florida Lennar Qualified Affiliate II Corporation Florida Lennar Real Estate Holdings, Inc. Florida Lennar Realty Inc. Florida Lennar Securities Holdings, Inc. Florida Lennar Texas Properties, Inc. Texas Lennar-Tyndall, Inc. Florida Lentex Development Corporation Texas LFH Sub I, Inc. Florida LGP-II Holdings, Inc. Florida Loan Funding, Inc. Florida Lucerne Greens, Inc. Florida Lucerne Merged Condominiums, Inc. Florida MAP Builders, Inc. Florida M.A.P. Vineyards of Plantation, Inc. Florida Midwest Management Company, Inc. Michigan Miller's Plantation Development Company Florida Monterey Village Development Corp. Florida Multi-Builder Acceptance Corp. Alabama NGMC Finance Corporation Florida NGMC Finance Corporation, IV Florida Parkview at Pembroke Pointe, Inc. Florida P-G & H, Inc. West Virginia Quality Roof Truss Company Florida Riviera Land Corp. Florida Satisfaction, Inc. Florida South Dade Utilities, Inc. Florida Springs Development Corporation Florida State Home Acceptance Corporation Florida Strategic Technologies, Inc. Florida Sunrise Hotel Corp. Florida Superior Realty & Marketing, Inc. Florida Talladega Manufacturing, Inc. Alabama TitleAmerica Insurance Corporation Florida Unisure Insurance Agency, Inc. Florida Universal American Finance Corp., I Florida Universal American Mortgage Company Florida Universal American Realty Corporation Delaware Universal Title Insurors, Inc. Florida Vista Del Lago Apartments, Inc. Florida W. B. Homes, Inc. Florida EX-23 6 CONSENTS EXHIBIT 23 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in Registration Statements No. 33-45442, No. 2-73630 and No. 2-89104 of Lennar Corporation on Form S-8 of our reports dated January 18, 1995, appearing in and incorporated by reference in this Annual Report on Form 10-K of Lennar Corporation for the year ended November 30, 1994. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Certified Public Accountants Miami, Florida February 25, 1995 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in Registration Statement No. 33-53003 of Lennar Corporation on Form S-3 of our reports dated January 18, 1995, appearing in and incorporated by reference in this Annual Report on Form 10-K of Lennar Corporation for the year ended November 30, 1994. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Certified Public Accountants Miami, Florida February 25, 1995 INDEPENDENT AUDITORS' CONSENT The Board of Directors Lennar Corporation: We consent to incorporation by reference in the Registration Statement (No. 33-45442, No. 2-73630 and No. 2-89104) on Form S-8 and (No. 33-53003) on Form S-3 of Lennar Corporation of our report dated January 18, 1994, relating to the consolidated balance sheet of Lennar Corporation and subsidiaries as of November 30, 1993 and the related consolidated statements of earnings, cash flows and stockholders equity for each of the years in the two-year period ended November 30, 1993. /s/ KPMG Peat Marwick LLP February 27, 1995 Miami, Florida EX-27 7 FINANCIAL DATA SCHEDULE
5 1,000 YEAR NOV-30-1994 NOV-30-1994 16,801 0 48,165 0 476,035 541,001 225,646 (32,025) 1,293,223 142,027 566,312 3,577 0 0 530,511 1,293,223 626,341 817,926 498,132 568,340 122,458 0 15,382 111,746 43,581 68,165 0 0 961 69,126 1.92 1.92
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