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EXHIBIT 1.1
LENNAR CORPORATION
$431,000,000
Zero Coupon Senior Convertible Debentures Due 2018
UNDERWRITING AGREEMENT
July 24, 1998
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o BT Alex. ▇▇▇▇▇ Incorporated
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Lennar Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to you (together, the "Underwriters"), severally and not jointly,
$431,000,000 aggregate principal amount at maturity (the "Firm Securities") of
the Company's Zero Coupon Senior Convertible Debentures Due 2018 (the
"Debentures"). The respective principal amounts at maturity of the Firm
Securities to be so purchased by the several Underwriters are set forth opposite
your names in Schedule I hereto. The Company also proposes to sell at the
Underwriters' option an aggregate of up to an additional $64,650,000 principal
amount at maturity (the "Option Securities") of Debentures as set forth below.
The Firm Securities and the Option Securities (to the extent the aforementioned
option is exercised) are herein collectively called the "Securities." The
Securities are to be issued under an Indenture dated as of December 31, 1997
(the "Base Indenture") between the Company and First National Bank of Chicago,
as trustee (the "Trustee"), as supplemented by a Supplemental Indenture to be
dated as of July 29, 1998 (the "Supplemental Indenture"). The Base Indenture as
supplemented by the Supplemental Indenture is referred to herein as the
"Indenture".
The holders of Securities will be entitled at any time on or prior to
the maturity date of the Securities to convert any
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Securities, unless previously redeemed or purchased by the Company, into shares
of the Company's Common Stock, par value $.10 per share ("Common Stock"), in
accordance with the terms of the Securities and the Indenture, at an initial
conversion rate of 12.3768 shares of Common Stock per $1,000 principal amount at
maturity.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
I. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the
Underwriters as follows:
*A.A registration statement on Form S-3 (File No. 333-45527),
including a basic prospectus relating to certain debt and equity securities to
be offered from time to time by the Company, has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has been
filed with the Commission. The Company has complied with the conditions for the
use of Form S-3. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, as well as copies of any Preliminary
Prospectuses (as defined below), have heretofore been delivered by the Company
to you. Such registration statement, which is herein referred to as the
"Registration Statement," has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. The Company has filed with the Commission pursuant to
Rule 424(b) a preliminary supplement to the basic prospectus included in the
Registration Statement and will hereafter file with the Commission pursuant to
Rule 424(b) a final supplement to such basic prospectus, in each case relating
to the Securities and the offering thereof. "Basic Prospectus" means the
prospectus included in the Registration Statement at the time it became
effective under the Act. "Prospectus" means the Basic Prospectus, together with
the final prospectus supplement relating to the Securities first filed with the
Commission pursuant to Rule 424(b). Each preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the
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offering thereof and is used prior to the filing of the Prospectus with the
Commission, together with the Basic Prospectus, is herein referred to as a
"Preliminary Prospectus." Any reference herein to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus or to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference therein,
and, in the case of any reference herein to any Prospectus, also shall be deemed
to include any documents incorporated by reference therein, and any supplements
or amendments thereto, filed with the Commission after the date of filing of the
Prospectus under Rule 424(b) or 430A, and prior to the termination of the
offering of the Securities by the Underwriters.
*B.The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate or other power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. Each of the
Subsidiaries (as defined below) and the Land Partnership (as defined below) has
been duly organized and is validly existing as a corporation or partnership, as
applicable, in good standing under the laws of the jurisdiction of its
incorporation or formation, with corporate or other power and authority to own
or lease its properties and conduct its business as described in the
Registration Statement. The Company, each of the Subsidiaries and the Land
Partnership are duly qualified to transact business in all jurisdictions in
which the conduct of their business requires such qualification, except where
the failure to be so qualified would not, individually or in the aggregate, have
a material adverse effect on the condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole or the business, management,
properties, assets, rights, operations or prospects of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect"). The Subsidiaries
listed on Exhibit 21 to the Company's Annual Report on Form 10-K for the year
ended November 30, 1997 constitute all the Subsidiaries at November 30, 1997
other than Subsidiaries that, if considered in the aggregate as a single
subsidiary, would not have constituted a "significant subsidiary" of the
Company, within the meaning of Rule 1-02(w) of the Commission's Regulation S-X.
There are no "significant subsidiaries" of the Company other than the Designated
Subsidiaries (as defined below), and, at the date of this Agreement, the
Subsidiaries other than the Designated Subsidiaries, if considered in the
aggregate as a single subsidiary, would not constitute a "significant
subsidiary" of the Company. The outstanding shares of capital stock of each of
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the Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Company or another Subsidiary free and
clear of all liens, encumbrances and equities and claims (except for the pledge
of the shares of certain of the direct and indirect subsidiaries of Lennar
Financial Services, Inc. ("LFS") to the lenders under LFS's credit agreement);
and no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into shares of
capital stock or ownership interests in the Subsidiaries or the Land Partnership
are outstanding. The Company indirectly owns a 50% interest in Lennar Land
Partners, a Delaware general partnership (the "Land Partnership"). Such interest
in the Land Partnership has been duly authorized and validly issued and is owned
by a Subsidiary indirectly wholly owned by the Company, free and clear of all
liens, encumbrances and equities and claims. For purposes of this Agreement, a
"Subsidiary" means a direct or indirect "subsidiary" of the Company, as such
term is defined in Rule 405 under the Act. For purposes of this Agreement, the
following Subsidiaries are "Designated Subsidiaries": Lennar Homes, Inc., Lennar
Homes of Arizona, Inc., Lennar Homes of California, Inc., Lennar Homes of Texas,
Inc., Houston Village Builders, Inc., Friendswood Land Development Company,
Lennar Management, Inc., Greystone Homes, Inc., Universal American Mortgage
Company, UAMC Asset Corp. and LFS.
*C.The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. The outstanding shares
of Common Stock and the Company's Class B Common Stock, par value $.10 per share
("Class B Common Stock"), have been duly authorized and validly issued and are
fully paid and non-assessable; and no preemptive rights of stockholders exist
with respect to the capital stock or any other securities of the Company or the
issue and sale thereof. Neither the filing of the Registration Statement nor the
offering or sale of the Securities as contemplated by this Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of Common Stock.
*D.The Securities are convertible into Common Stock in
accordance with the terms of the Indenture and the Securities; the shares of
Common Stock issuable upon conversion of the Securities have been duly issued
and reserved for issuance upon such conversion and, if and when issued upon such
conversion, will be validly issued, fully paid and non-assessable and will
conform to the description thereof contained in the Registration Statement.
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*E.The Company has all requisite corporate power and authority
to execute, deliver and perform each of its obligations under the Securities.
The Securities, when issued, will be in the form contemplated by the Indenture.
The Securities have each been duly and validly authorized by the Company and,
when executed by the Company and authenticated by the Trustee in accordance with
the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will have been duly
executed, issued and delivered and will constitute valid and legally binding
obligations of the Company (assuming the due authorization, execution and
delivery of the Indenture by the Trustee and the due authorization and delivery
of the Securities by the Trustee in accordance with the Indenture), entitled to
the benefits of the Indenture, and enforceable against the Company in accordance
with their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
*F.The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Indenture. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). The Indenture has been duly and validly
authorized by the Company, and the Base Indenture (assuming the due
authorization, execution and delivery by the Trustee) has been duly executed and
delivered and constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforcement is considered in
a proceeding in equity or at law). When the Supplemental Indenture is executed
and delivered by the Company (assuming the due authorization, execution and
delivery by the Trustee), the Supplemental Indenture will have been duly
executed and delivered and the Indenture will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
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bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
*G.Each of the Indenture and the Securities conforms in all
material respects to the description thereof in the Prospectus as supplemented
or amended.
*H.The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly and validly authorized by the Company. This Agreement has been duly
executed and delivered by the Company.
*I.The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Securities nor instituted proceedings for that purpose. The Registration
Statement contains, and the Prospectus and any amendments or supplements thereto
will contain, all statements which are required to be stated therein by, and
will conform, to the requirements of the Act and the Rules and Regulations and
the Trust Indenture Act. The documents incorporated by reference in the
Prospectus, at the time filed with the Commission conformed, in all material
respects to the requirements of the Securities Exchange Act of 1934 (the
"Exchange Act") or the Act, as applicable, and the rules and regulations of the
Commission thereunder. The Registration Statement and any amendment thereto do
not contain, and will not contain, any untrue statement of a material fact and
do not omit, and will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus and any amendments and supplements thereto do not contain, and will
not contain, any untrue statement of material fact; and do not omit, and will
not omit, to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written
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information furnished to the Company by or on behalf of any Underwriter
specifically for use in the preparation thereof.
*J.The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules, as incorporated by
reference in the Prospectus, present fairly the financial position and the
results of operations and cash flows of the Company and the consolidated
Subsidiaries, at the indicated dates and for the indicated periods. Such
financial statements and related schedules have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout the
periods involved, except as disclosed therein, and all adjustments necessary for
a fair presentation of results for such periods have been made. The summary
financial and statistical data included or incorporated by reference in the
Prospectus presents fairly the information shown therein and such data has been
compiled on a basis consistent with the financial statements presented therein
and the books and records of the Company. The pro forma financial statements and
other pro forma financial information included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
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*K.Each of Deloitte & Touche LLP and Ernst & Young LLP, who
have certified certain of the financial statements filed with the Commission and
incorporated by reference in the Registration Statement and the Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
*L.There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company, any of the
Subsidiaries or the Land Partnership before any court or administrative agency
or otherwise which if determined adversely to the Company, any of its
Subsidiaries or the Land Partnership might result in any material adverse change
in the earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole or might prevent the consummation of the
transactions contemplated hereby, except as set forth in the Prospectus.
*M.The Company, the Subsidiaries and the Land Partnership have
good and marketable title to all of the properties and assets reflected in the
financial statements (or as described in the Registration Statement or the
Prospectus) hereinabove described, subject to no lien, mortgage, pledge, charge
or encumbrance of any kind except those reflected in such financial statements
(or as described in the Registration Statement or the Prospectus) or which are
not material in amount. The Company and the Subsidiaries occupy their leased
properties under valid and binding leases conforming in all material respects to
the description thereof set forth or incorporated by reference in the
Registration Statement or the Prospectus.
*N.The Company, the Subsidiaries and the Land Partnership have
timely filed all Federal, State, local and foreign tax returns which have been
required to be filed (taking into account any applicable extensions) and have
paid all taxes indicated by said returns and all assessments received by them or
any of them to the extent that such taxes have become due and are not being
contested in good faith and for which an adequate reserve for accrual has been
established in accordance with generally accepted accounting principles. All tax
liabilities of the Company and the Subsidiaries have been adequately provided
for in the consolidated financial statements of the Company, and the Company
does not know of any actual or proposed additional material tax assessments.
*O.Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, as it
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has been amended or supplemented, there has not been any material adverse change
or any development involving a prospective material adverse change in or
otherwise materially affecting the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise), or prospects of
the Company and its Subsidiaries taken as a whole, whether or not occurring in
the ordinary course of business, and there has not been any material transaction
entered into or any material transaction that is probable of being entered into
by the Company, the Subsidiaries or the Land Partnership, other than
transactions in the ordinary course of business and changes and transactions
described in the Prospectus, as it has been amended or supplemented. The Company
and the Subsidiaries have no material contingent obligations which are not
disclosed in the Company's financial statements which are incorporated by
reference in the Prospectus.
*P.Neither the Company, any of the Subsidiaries nor the Land
Partnership is or with the giving of notice or lapse of time or both, will be,
in violation of or in default under its Charter or By-Laws or other comparable
documents or under any agreement, lease, contract, indenture or other instrument
or obligation to which it is a party or by which it, or any of its properties,
is bound, which default is of material significance in respect of the condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole or
the business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the Subsidiaries taken
as a whole. The execution and delivery of this Agreement, the Indenture and the
Securities and the consummation of the transactions herein and therein
contemplated and the fulfillment of the terms hereof and thereof will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under (or an event which with the giving of notice or lapse
of time or both would constitute a default under), or result in the imposition
or creation of (or the obligation to create or impose) a lien on any property or
assets of the Company, any Subsidiary or the Land Partnership with respect to,
any indenture, mortgage, deed of trust or other agreement or instrument to which
the Company, any Subsidiary or the Land Partnership is a party, or of the
Charter or By-Laws or other comparable documents of the Company, any Subsidiary
or the Land Partnership or any order, rule or regulation applicable to the
Company, any Subsidiary or the Land Partnership of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction.
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*Q.Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement, the Indenture and the Securities and the consummation
of the transactions herein and therein contemplated (except such additional
steps as may be required by the Commission, the National Association of
Securities Dealers, Inc. (the "NASD") or such additional steps as may be
necessary to qualify the Securities for public offering by the Underwriters
under state securities or Blue Sky laws) has been obtained or made and is in
full force and effect.
*R.Each of the Company, the Subsidiaries and the Land
Partnership holds all material licenses, certificates and permits (collectively,
"Permits") from governmental authorities which are necessary to the conduct of
its businesses, and has fulfilled and performed in all material respects its
obligations with respect to the Permits; and neither the Company nor any of the
Subsidiaries has infringed any patents, patent rights, trade names, trademarks
or copyrights, which infringement is material to the business of the Company and
the Subsidiaries taken as a whole. The Company knows of no material infringement
by others of patents, patent rights, trade names, trademarks or copyrights owned
by or licensed to the Company or any of the Subsidiaries.
*S.Neither the Company, nor to the Company's knowledge, any of
its affiliates, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the Securities or shares of Common Stock to facilitate the sale or
resale of the Securities. The Company acknowledges that the Underwriters may
engage in stabilizing transactions in the Securities and Common Stock in
accordance with Regulation M under the Exchange Act.
*T.Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940, as amended (the "Investment Company Act") and the rules and regulations of
the Commission thereunder.
*U.The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions
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are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
*V.Neither the Company nor any of the Subsidiaries nor any
agent acting on their behalf has taken or will take any action that might cause
this Agreement or the sale of the Securities to violate Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing Date.
*W.Except as described in the Prospectus or as would not have
a Material Adverse Effect, (i) each of the Company, the Subsidiaries and the
Land Partnership is in compliance with and not subject to liability under
applicable Environmental Laws (as defined below), (ii) each of the Company, the
Subsidiaries and the Land Partnership has made all filings and provided all
notices required under any applicable Environmental Law, and has and is in
compliance with all Permits required under any applicable Environmental Laws and
each of them is in full force and effect, (iii) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for information
pending or, to the knowledge of the Company, threatened against the Company, any
Subsidiary or the Land Partnership under any Environmental Law, (iv) no lien,
charge, encumbrance or restriction has been recorded under any Environmental Law
with respect to any assets, facility or property owned, operated, leased or
controlled by the Company, any Subsidiary or the Land Partnership, (v) neither
the Company, any Subsidiary nor the Land Partnership has received notice that it
has been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable state law and (vi) no property or facility of the
Company or any Subsidiary or the Land Partnership is (A) listed or proposed for
listing on the National Priorities List under CERCLA or (B) listed in the
Comprehensive Environmental Response, Compensation, Liability Information System
List promulgated pursuant to CERCLA, or on any comparable list maintained by any
state or local governmental authority.
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For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and aboveground storage tanks, and related piping, and emissions, discharges,
releases or threatened releases therefrom.
*A.There is no strike, labor dispute, slowdown or work
stoppage with the employees of the Company, the Subsidiaries or the Land
Partnership which is pending or, to the knowledge of the Company, threatened,
which would have a Material Adverse Effect.
*B.The Company, its Subsidiaries and the Land Partnership
carry, or are covered by, insurance in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in similar
industries.
*C.The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
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*▇.▇▇ the best of the Company's knowledge, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater security holders, except as set
forth in the Registration Statement.
II. Purchase, Sale and Delivery of the Firm SECURITIES.
*A.On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to each Underwriter and each Underwriter agrees,
severally and not jointly, to purchase the aggregate principal amount at
maturity of Firm Securities set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 9 hereof,
at a purchase price of 45.253% of such aggregate principal amount at maturity.
*B.Payment for the Firm Securities to be sold hereunder is to
be made by wire transfer of Federal (same day) funds to the order of the Company
against delivery of certificates therefor to the Underwriters. Such payment and
delivery are to be made through the facilities of The Depository Trust Company,
New York, New York at 10:00 a.m., New York time, on the third business day after
the date of this Agreement (or, if the Underwriters determine the price of the
Firm Securities after 4:30 p.m., New York time, on the date hereof, the fourth
business day) or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and are not permitted by law or
executive order to be closed.) The certificates for the Firm Securities in
definitive form will be delivered in such denominations and in such
registrations as the Underwriters request in writing not later than the second
full business day prior to the Closing Date, and will be made available for
inspection by the Underwriters at least one business day prior to the Closing
Date.
*▇.▇▇ addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase the Option Securities at a purchase price of 45.253% of the aggregate
principal amount at maturity of the Option Securities, plus accrued Original
Issue
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Discount (as defined in the Indenture), if any, from the Closing Date to the
Option Closing Date (as defined below). The option granted hereby may be
exercised in whole or in part by giving written notice (i) at any time before
the Closing Date and (ii) only once thereafter within 30 days after the date of
this Agreement, by the Underwriters to the Company setting forth the aggregate
principal amount at maturity of Option Securities as to which the several
Underwriters are exercising the option, the names and denominations in which the
Option Securities are to be registered and the time and date at which such
certificates are to be delivered. The time and date at which certificates for
Option Securities are to be delivered shall be determined by the Underwriters
but shall not be earlier than three nor later than 10 full business days after
the exercise of such option, nor in any event prior to the Closing Date (such
time and date being herein referred to as the "Option Closing Date"). If the
date of exercise of the option is three or more days before the Closing Date,
the notice of exercise shall set the Closing Date as the Option Closing Date.
The aggregate principal amount at maturity of Option Securities to be purchased
by each Underwriter shall be in the same proportion to the total number of
Option Securities being purchased as the aggregate principal amount at maturity
of Firm Securities being purchased by such Underwriter bears to $431,000,000
adjusted by you in such manner as to provide denominations of principal amount
at maturity of $1,000 or integral multiples thereof. The option with respect to
the Option Securities granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Securities by the Underwriters. You may
cancel such option at any time prior to its expiration by giving written notice
of such cancellation to the Company. To the extent, if any, that the option is
exercised, payment for the Option Securities shall be made on the Option Closing
Date by wire transfer of Federal (same day) funds through the facilities of The
Depository Trust Company in New York, New York to the order of the Company.
III. Offering by the Underwriters.
It is understood that the several Underwriters are to make a
public offering of the Firm Securities as soon as the Underwriters deem it
advisable to do so. The Firm Securities are to be initially offered to the
public at the initial public offering price set forth in the Prospectus. The
Underwriters may from time to time thereafter change the public offering price
and other selling terms. To the extent, if at all, that any Option Securities
are purchased pursuant to Section 2 hereof, the
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Underwriters will have offered them to the public on the foregoing terms.
I. Covenants of the Company.
The Company covenants and agrees with the several Underwriters
that:
*A.The Company will (A) use its best efforts to prepare and
timely file with the Commission under Rule 424(b) of the Rules and Regulations a
Prospectus in a form approved by the Underwriters, and (B) not file any
amendment to the Registration Statement or supplement to the Prospectus or
document incorporated by reference therein of which the Underwriters shall not
previously have been advised and furnished with a copy or to which the
Underwriters shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations and (C) file on a timely basis all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the Prospectus and
prior to the termination of the offering of the Securities by the Underwriters.
*B.The Company will advise the Underwriters promptly (A) when
any post-effective amendment to the Registration Statement shall have become
effective, (B) of receipt of any comments from the Commission relating to the
Registration Statement, the Prospectus or any documents incorporated by
reference therein, (C) of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any additional
information, and (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use of the
Prospectus or of the institution of any proceedings for that purpose. The
Company will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
*C.The Company will cooperate with the Underwriters in
endeavoring to qualify the Securities for sale under the securities laws of such
jurisdictions as the Underwriters may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information
as may be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any
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jurisdiction where it is not now so qualified or required to file such a
consent. The Company will, from time to time, prepare and file such statements,
reports, and other documents, as are or may be required to continue such
qualifications in effect for so long a period as the Underwriters may reasonably
request for distribution of the Securities.
*D.The Company will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any Preliminary Prospectus as
the Underwriters may reasonably request. The Company will deliver to, or upon
the order of, the Underwriters during the period when delivery of a Prospectus
is required under the Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Underwriters may reasonably request.
The Company will deliver to the Underwriters at or before the Closing Date,
three copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Underwriters such number
of copies of the Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested), including documents
incorporated by reference therein, and of all amendments thereto, as the
Underwriters may reasonably request.
*E.The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (i) prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
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*F.The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earning
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
*G.Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
*▇.▇▇ offering, sale, short sale, grant of any option for the
sale of, or other disposition of any shares of Voting Stock or other securities
convertible into or exchangeable or exercisable for shares of Voting Stock or
derivatives of Voting Stock (or agreement for such) will be made for a period of
60 days after the date of this Agreement, directly or indirectly, by the Company
otherwise than hereunder or with the prior written consent of BT Alex. ▇▇▇▇▇
Incorporated, except that the Company may issue and sell and enter into any
agreement to issue and sell (i) the Securities pursuant to this Agreement, (ii)
shares of Common Stock upon conversion of Class B Common Stock outstanding on
the date of this Agreement, (iii) shares of Common Stock issued upon exercise of
options, or under employee stock plans, in existence on the date of this
Agreement, (iv) options granted under option plans as they exist on the date of
this Agreement and (v) shares of Voting Stock as consideration in the
acquisition by the Company and its Subsidiaries of properties, businesses and
interests in the ordinary course of their business. For purposes of this
Agreement, "Voting Stock" means the Common Stock, Class B Common Stock and any
other stock of the Company which votes together with the Common Stock in the
election of directors (without regard to whether there has been an arrearage in
the payment of dividends of dividends on preferred stock).
*I.The Company will use its best efforts to list on the New
York Stock Exchange, subject to notice of issuance, the shares of Common Stock
into which the Securities are convertible.
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*J.The Company has caused each officer, director and
stockholder of the Company listed on Schedule II to furnish to you, on or prior
to the date of this agreement, a letter or letters, in form and substance
satisfactory to the Underwriters, pursuant to which each such person has agreed
not to sell, offer to sell, sell short, grant any option for the sale of, or
otherwise dispose of, any shares of Voting Stock, or any other securities
convertible, exchangeable or exercisable for shares of Voting Stock or
derivatives of Voting Stock owned by such person (or as to which such person has
the right to direct the disposition of) or request the registration for the
offer or sale of any of the foregoing for a period of 60 days after the date of
this Agreement, directly or indirectly, except with the prior written consent of
BT Alex. ▇▇▇▇▇ Incorporated ("Lockup Agreements").
*K.The Company shall apply the net proceeds of its sale of the
Securities as set forth in the Prospectus.
*L.The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Securities in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the Investment Company Act.
*M.The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
*N.The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
II. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus and any supplements or amendments thereto, this Agreement, the
Underwriters' Invitation Letter, the Listing Application, the Blue Sky Survey
and any supplements or
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amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements) incident to securing any
required review by the NASD of the terms of the sale of the Securities; the
Listing Fee of the New York Stock Exchange with respect to the shares of Common
Stock into which the Securities are convertible; and the expenses, including the
fees and disbursements of counsel for the Underwriters, incurred in connection
with the qualification of the Securities under State securities or Blue Sky
laws. The Company shall not, however, be required to pay for any of the
Underwriters expenses (other than those related to qualification under NASD
regulation and State securities or Blue Sky laws) except that, if this Agreement
shall not be consummated because the conditions in Section 6 hereof are not
satisfied, or because this Agreement is terminated by the Underwriters pursuant
to Section 11 hereof, or by reason of any failure, refusal or inability on the
part of the Company to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on its part to be performed,
unless such failure to satisfy said condition or to comply with said terms shall
be due to the default or omission of any Underwriter, then the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Securities or in
contemplation of performing their obligations hereunder; but the Company shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Securities.
I. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the
Firm Securities on the Closing Date and the Option Securities, if any, on the
Option Closing Date are subject to the accuracy, as of the Closing Date or the
Option Closing Date, as the case may be, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional conditions:
*A.The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to
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the Underwriters and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company, shall be contemplated
by the Commission and no injunction, restraining order, or other order of any
nature by a Federal or state court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance of the
Securities.
*B.The Underwriters shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel for the Company, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) to the effect that:
*1. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own or lease its properties
and conduct its business as described in the Prospectus; each of the Designated
Subsidiaries and the Land Partnership has been duly organized and is validly
existing as a corporation or partnership, as applicable, in good standing under
the laws of the jurisdiction of its incorporation or formation, with corporate
or other power and authority to own or lease its properties and conduct its
business as described in the Prospectus; the Company, each of the Designated
Subsidiaries and the Land Partnership are duly qualified to transact business in
all jurisdictions in which the conduct of their business requires such
qualification, except where, to the best of such counsel's knowledge, the
failure to qualify would have a materially adverse effect upon the business of
the Company and the Subsidiaries taken as a whole; and the outstanding shares of
capital stock of each of the Designated Subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable and are owned by the
Company or a Subsidiary; and, to the best of such counsel's knowledge, the
outstanding shares of capital stock of each of the Designated Subsidiaries are
owned free and clear of all liens, encumbrances and equities and claims (except
for the pledge of the shares of certain of the direct and indirect subsidiaries
of LFS to the lenders under LFS's credit agreement), and no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into any shares of capital stock or of
ownership interests in the Designated Subsidiaries or the Land Partnership are
outstanding. The Company indirectly owns a 50% interest in
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the Land Partnership. Such interest in the Land Partnership has been duly
authorized and validly issued and is owned by a Subsidiary which, to the best of
such counsel's knowledge, is indirectly wholly owned by the Company, free and
clear of all liens, encumbrances and equities and claims.
*2. The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization" in the Prospectus;
the authorized shares of Common Stock and Class B Common Stock have been duly
authorized; the outstanding shares of the Common Stock and Class B Common Stock
have been duly authorized and validly issued and are fully paid and
non-assessable; the Securities are convertible into Common Stock in accordance
with the terms of the Indenture and the Securities; the shares of Common Stock
issuable upon conversion of the Securities have been duly reserved for issuance
upon such conversion and, if and when issued upon such conversion, will be
validly issued, fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus; and no preemptive rights of
stockholders exist with respect to the capital stock or any other securities of
the Company or the issue or sale thereof.
*3. Except as described in or contemplated by the
Prospectus, to the best of such counsel's knowledge, there are no outstanding
securities of the Company convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of capital stock of the Company
and there are no outstanding or authorized options, warrants or rights of any
character obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in the
Prospectus, to the knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or otherwise, which has
not been satisfied or effectively waived, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of, any of the
Securities or the right to have any shares of Common Stock or other securities
of the Company included in the Registration Statement or the right, as a result
of the filing of the Registration Statement, to require registration under the
Act of any shares of Common Stock or other securities of the Company.
*4. The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Securities
and the Indenture.
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*5. The Indenture has been duly qualified under the
Trust Indenture Act; the Indenture has been duly and validly authorized,
executed and delivered by the Company, and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes the valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
*6. The Securities are in the form contemplated by
the Indenture. The Securities have each been duly and validly authorized,
executed and delivered by the Company and, when paid for by the Underwriters in
accordance with the terms of this Agreement (assuming the due authorization,
execution and delivery of the Indenture by the Trustee and due authentication
and delivery of the Securities by the Trustee in accordance with the Indenture),
will constitute the valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture, and enforceable against the Company
in accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
*7. The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby; this Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly and validly authorized by the Company. This Agreement has been duly
executed and delivered by the Company.
*8. The Indenture and the Securities conform as to
legal matters in all material respects to the descriptions thereof contained in
the Prospectus as supplemented or amended.
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*9. The Registration Statement has become effective
under the Act and, to the best of the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending or
threatened under the Act.
*10. The Registration Statement, the Prospectus and
each amendment or supplement thereto and document incorporated by reference
therein comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the financial
statements and related schedules incorporated by reference therein). The
conditions for the use of Form S-3, set forth in the General Instructions
thereto, have been satisfied.
*11. The statements under the captions "Description
of Debentures," "Certain Federal Income Tax Considerations," "Description of
Debt Securities" and "Description of Capital Stock" in the Prospectus and Item
15 of the Registration Statement, insofar as such statements constitute a
summary of documents referred to therein or matters of law, fairly summarize in
all material respects the information called for with respect to such documents
and matters.
*12. Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated by reference in
the Registration Statement or described in the Registration Statement or the
Prospectus which are not so filed, incorporated by reference or described as
required, and such contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material respects.
*13. Such counsel knows of no material legal or
governmental proceedings pending or threatened against the Company, any of the
Subsidiaries or the Land Partnership except as set forth in the Prospectus.
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*14. The execution and delivery of this Agreement,
the Indenture and the Securities and the consummation of the transactions herein
and therein contemplated do not and will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under (or an event
which with the giving of notice or lapse of time or both would constitute a
default under) or result in the imposition or creation of (or the obligation to
create or impose) a lien on any property or assets of the Company, any
Designated Subsidiary or the Land Partnership with respect to, the Charter,
By-Laws or other comparable documents of the Company, any Designated Subsidiary
or the Land Partnership, or any agreement or instrument known to such counsel to
which the Company, any of the Designated Subsidiaries or the Land Partnership is
a party or by which the Company, any of the Designated Subsidiaries or the Land
Partnership may be bound or any order, rule or regulation known to such counsel
to be applicable to the Company, any Designated Subsidiary or the Land
Partnership of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction.
*15. No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution and
delivery of this Agreement, the Indenture and the Securities and the
consummation of the transactions herein and therein contemplated (other than as
may be required by the NASD or as required by State securities and Blue Sky laws
as to which such counsel need express no opinion) except such as have been
obtained or made, specifying the same.
*16. The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the Prospectus,
required to register as an investment company under the Investment Company Act.
*17. Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or delivery of
the Securities will violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP may
rely as to matters governed by the laws of states other than New York, Delaware
General Corporation Law or Federal laws on local
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counsel in such jurisdictions, provided that in each case ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
shall state that they believe that they and the Underwriters are justified in
relying on such other counsel. In addition to the matters set forth above, such
opinion shall also include a statement to the effect that nothing has come to
the attention of such counsel which leads them to believe that (i) the
Registration Statement, at the time it became effective under the Act (but after
giving effect to any modifications incorporated therein pursuant to Rule 430A
under the Act) and as of the Closing Date or the Option Closing Date, as the
case may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and as
of the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading (except that such counsel need
express no view as to financial statements, schedules and statistical
information therein). With respect to such statement, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP may
state that their belief is based upon the procedures set forth therein, but is
without independent check and verification (except with respect to the matters
addressed in subparagraph (xi)).
*A.The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, an opinion dated the Closing Date or
the Option Closing Date, as the case may be, with respect to certain legal
matters relating to this Agreement, and such other related matters as the
Underwriters may reasonably require. In rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other
documents and information as they may reasonably request to pass upon such
matters.
*B.The Underwriters shall have received at or prior to the
Closing Date from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ a memorandum or summary, in form and
substance satisfactory to the Underwriters, with respect to the qualification
for offering and sale by the Underwriters of the Securities under the State
securities or Blue Sky laws of such jurisdictions as the Underwriters may
reasonably have designated to the Company.
*▇.▇▇▇ shall have received, on each of the date hereof, the
Closing Date and the Option Closing Date, as the case may be,
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a letter dated the date hereof, the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to you, of Deloitte & Touche
LLP confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules examined by
them and incorporated by reference in the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act and the
related published Rules and Regulations; and containing such other statements
and information as is ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial and
statistical information contained in the Registration Statement and Prospectus.
*D.The Underwriters shall have received on the Closing Date or
the Option Closing Date, as the case may be, a certificate or certificates of
the Chief Executive Officer and the Chief Financial Officer of the Company to
the effect that, as of the Closing Date or the Option Closing Date, as the case
may be, each of them severally represents on behalf of the Company as follows:
*1.The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registrations Statement has been issued, and no proceedings for such purpose
have been taken or are, to his knowledge, contemplated by the Commission;
*2.The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing Date or the
Option Closing Date, as the case may be;
*3. All filings which he has been advised by counsel
are required to have been made pursuant to Rule 424 or 430A under the Act have
been made;
*4.He or she has carefully examined the Registration
Statement and the Prospectus and, in his or her opinion, as of the effective
date of the Registration Statement, the statements contained in the Registration
Statement were true and correct, and such Registration Statement and Prospectus
did not omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, and since the effective
date of the Registration Statement, no event has occurred which should have been
set forth
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in a supplement to or an amendment of the Prospectus which has not been so set
forth in such supplement or amendment; and
*5.Since the respective dates as of which information
is given in the Registration Statement and Prospectus, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole or the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business.
*E.The Company shall have furnished to the Underwriters such
further certificates and documents confirming the representations and
warranties, covenants and conditions contained herein and related matters as the
Underwriters may reasonably have requested.
*F.The shares of Common Stock into which the Securities are
convertible shall have been approved for listing on the New York Stock Exchange,
subject to notice of issuance.
*G.The Lockup Agreements described in Section 4(j) shall be in
full force and effect.
*H.The Supplemental Indenture shall have been duly executed
and delivered by the Company and the Trustee, and the Firm Securities or Option
Securities, as the case may be, shall have been duly executed by the Company,
and such Securities shall have been duly authenticated by the Trustee.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Underwriters and to
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Underwriters by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be.
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In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
I. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion
of the Securities required to be delivered as and when specified in this
Agreement are subject to the conditions that at the Closing Date or the Option
Closing Date, as the case may be, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
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I. Indemnification.
*A.The Company agrees:
(1)to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within
the meaning of the Act, against any losses, claims, damages or
liabilities to which such Underwriter or any such controlling
person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company will not
be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or
alleged omission in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Prospectus, or
such amendment or supplement, made in reliance upon and in
conformity with written information furnished to the Company
by or through the Underwriters specifically for use in the
preparation thereof.
(2)to reimburse each Underwriter and each such
controlling person upon demand for any legal or other
out-of-pocket expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or
defending any such loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Securities, whether or
not such Underwriter or controlling person is a party to any
action or proceeding. In the event that it is finally
judicially determined that the Underwriters were not entitled
to receive payments for legal and other expenses pursuant to
this subparagraph, the Underwriters will promptly return all
sums that had been advanced pursuant hereto.
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*A.Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each of its directors and officers and each
person, if any, who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities to which the Company or any such
director, officer, or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Underwriters specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
*▇.▇▇ case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or (b). In case any such proceeding shall be brought
against any indemnified party and it
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shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party and shall pay as incurred the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or
within 30 days of presentation) the fees and expenses of the counsel retained by
the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party shall
have failed to assume the defense and employ counsel reasonably acceptable to
the indemnified party within a reasonable period of time after notice of
commencement of the action. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by you in the case of parties indemnified pursuant to Section 8(a) and
by the Company in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding of which indemnification may be sought hereunder (whether
or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
*C.If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of
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any losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus as amended or supplemented. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess
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of the underwriting discounts and commissions applicable to the Securities
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
*▇.▇▇ any proceeding relating to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Prospectus or any
supplement or amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
*B.Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Securities and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
II. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case
may be, any Underwriter shall fail to purchase and pay for the portion of the
Securities which such Underwriter has agreed to purchase and pay for on such
date (otherwise than by reason of any default on the part of the Company), you
shall use your reasonable efforts to procure within 36 hours thereafter one or
more of the other Underwriters, or any others, to purchase
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from the Company in such respective amounts as may be agreed upon and upon the
terms set forth herein, the Firm Securities or Option Securities, as the case
may be, which the defaulting Underwriter or Underwriters failed to purchase. If
during such 36 hours you shall not have procured such other Underwriters, or any
others, to purchase the Firm Securities or Option Securities, as the case may
be, agreed to be purchased by the defaulting Underwriter or Underwriters, then
(a) if the aggregate principal amount at maturity of Securities with respect to
which such default shall occur does not exceed 10% of the principal amount at
maturity of the Firm Securities or Option Securities, as the case may be,
covered hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective principal amounts which they are obligated to
purchase hereunder, to purchase the Firm Securities or Option Securities, as the
case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate principal amount at maturity of Firm
Securities or Option Securities, as the case may be, with respect to which such
default shall occur exceeds 10% of the principal amount at maturity of the Firm
Securities or Option Securities, as the case may be, covered hereby, the Company
or you will have the right, by written notice to the parties to this Agreement,
to terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Company except to the extent provided in Section 8
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 9, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding seven days, as you may
determine in order that the required changes in the Registration Statement or in
the Prospectus or in any other documents or arrangements may be effected. The
term "Underwriter" includes any person substituted for a defaulting Underwriter.
Any action taken under this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
I. Notices.
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to BT Alex. ▇▇▇▇▇
Incorporated, One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.; with a copy to BT Alex. ▇▇▇▇▇
Incorporated, One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel; if to the
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Company, to Lennar Corporation, ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer.
I. Termination.
*A.This Agreement may be terminated by you by notice to the
Company at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole or the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business; (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your judgment, make it impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities; (iii) suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on prices (other
than limitations on hours or numbers of days of trading) for securities on
either such Exchange; (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company;
(v) declaration of a banking moratorium by United States or New York State
authorities; (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act); (vii) the suspension of trading of the Common Stock by
the New York Stock Exchange, the Commission, or any other governmental
authority; or (viii) the taking of any action by any governmental body or agency
in respect of its monetary or fiscal affairs which in your reasonable opinion
has a material adverse effect on the securities markets in the United States; or
*▇.▇▇ provided in Sections 6 and 9 of this Agreement.
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II. Successors.
This Agreement has been and is made solely for the benefit of
the Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign merely because of such purchase.
I. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that
the only information furnished or to be furnished by any Underwriter to the
Company for inclusion in any Prospectus or the Registration Statement consists
of the information set forth in the last paragraph on the front cover page
(insofar as such information relates to the Underwriters), legends required by
Item 502(d) of Regulation S-K under the Act and the information under the
caption "Underwriting" in the Prospectus.
I. Miscellaneous.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Securities
under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
If the foregoing letter is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
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LENNAR CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
BT ALEX. ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: BT Alex. ▇▇▇▇▇ Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------
Authorized Officer
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SCHEDULE I
Schedule of Underwriters
Principal Amount at Maturity of
Underwriter Firm Securities to be Purchased
----------- -------------------------------
BT Alex. ▇▇▇▇▇ Incorporated $323,250,000
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 107,750,000
-------------------
Total $431,000,000
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SCHEDULE II
Schedule of PERSONS EXECUTING LOCKUP AGREEMENTS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Warburg, ▇▇▇▇▇▇ Investors, L.P.
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