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Exhibit 10(s)
[Commitment Letter]
BANKERS TRUST CORPORATION
and
FIRST CHICAGO CAPITAL CORPORATION
c/o Bankers Trust Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
March 15, 2000
LENNAR CORPORATION
700 N.W. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: U.S. Home Merger Financing
Ladies and Gentlemen:
We understand that you intend to consummate a merger (the "Merger")
between Len Acquisition Corporation, one of your wholly-owned subsidiaries
("Newco"), and U.S. Home Corporation, a Delaware corporation ("USH"), in which
Newco will be the surviving entity, and to conduct a tender offer and consent
solicitation (the "Tender Offer') for certain public indebtedness of USH.
We further understand that the funding requirements for the Merger
and Tender Offer will be approximately $1.4 billion and such amount, together
with ongoing working capital needs, will be provided solely from (i) a senior
secured revolving credit and term loan facility of up to $1.3 billion (the "Bank
Financing") to be drawn in part on the closing date of the Merger (the "Closing
Date"), (ii) approximately $265.8 million of your common stock (based on the
closing sale price of $15.81 on February 11, 2000) and (iii) the issuance and
sale of Debt Securities (as defined below). The Merger, the Tender Offer, the
Bank Financing, the issuance of your common stock as described above, the bridge
loan contemplated by this letter, and the issuance and sale of the Debt
Securities are herein collectively referred to as the "Transaction".
In connection with the Transaction, you have engaged Deutsche Bank
Securities Inc. and Banc One Capital Markets, Inc. as joint book-running
managers (the "Joint Book-Running Managers") to sell or place senior debt
securities issued by you (the "Debt Securities").
You have requested that Bankers Trust Corporation and First Chicago
Capital Corporation (the "Co-Lenders") commit to provide you funds in the amount
of up to $500 million in the form of a senior unsecured bridge loan and/or term
loan to be made available as described in Section 1 hereof (the "Bridge Loan").
You shall have the right to designate additional financial institutions
reasonably acceptable to the Co-Lenders to provide a portion of the Bridge Loan;
provided that in no event will any other financial institution provide a larger
portion of the Bridge Loan than the respective individual portions to be
provided by each Co-Lender (any such additional lenders and the Co-Lenders being
collectively referred to as the "Lenders").
Accordingly, subject to the terms and conditions set forth or
incorporated in this letter, the Lenders agree with you as follows:
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Lennar Corporation
March 15, 2000
Page 2.
Section 1. Bridge Loan. The Lenders hereby commit, subject to the
terms and conditions hereof and in the Summary Term Sheet attached hereto as
Exhibit A (the "Term Sheet"), to provide to you a senior unsecured bridge loan
and/or term loan in the aggregate principal amount of up to $500 million on the
Closing Date, each such Lender to be obligated to provide the portion of the
Bridge Loan set forth below its signature on the signature pages hereto. The
proceeds of the Bridge Loan shall be used solely to pay the applicable purchase
price (including any premium or consent fee and including any accrued interest
or discount) (the "Purchase Price") of outstanding debt securities of USH that
are tendered for purchase or redemption ("Tendered Debt") in accordance with the
terms of the Tender Offer and/or other costs of the Merger. The principal terms
of the Bridge Loan are summarized in the Term Sheet.
Unless the commitment of the Lenders hereunder shall have been
terminated pursuant to Section 7, the Lenders shall have the exclusive right to
provide the Bridge Loan or other bridge or interim financing required in
connection with the Transaction.
You hereby represent and covenant that based on your review and
analysis, to the best of your knowledge, (a) all information other than
Projections (as defined below) which has been or is hereafter made available to
the Lenders by you or your representatives, advisors or affiliates in connection
with the transactions contemplated hereby (the "Information") is, or in the case
of Information made available after the date hereof will be, correct in all
material respects and does not and will not contain any untrue statement of a
material fact or omit to state a material fact known to you and necessary to
make the statements contained therein, in the light of the circumstances under
which such statements were or are made, not misleading and (b) all financial
projections concerning the Transaction that have been or are hereafter made
available to the Lenders by you or your representatives, advisors or affiliates
in connection with the transactions contemplated hereby (the "Projections") have
been or, in the case of Projections made available after the date hereof, will
be prepared in good faith based upon reasonable assumptions (it being understood
that the Projections are subject to significant uncertainties and contingencies,
many of which are beyond your control and that no assurance can be given that
such Projections will be realized). You agree to supplement the Information and
the Projections from time to time until the earlier of (i) consummation of the
Transaction and (ii) termination of the commitments hereunder so that the
representation and warranty made in the preceding sentence is correct as of such
date. In arranging and syndicating the Bridge Loan, the Lenders will be using
and relying on the information and the Projections. The representations and
covenants contained in this paragraph shall remain effective until a definitive
financing agreement is executed and thereafter the disclosure representations
contained herein shall be terminated and of no further force and effect.
Section 2. Financing Documentation. The making of the Bridge Loan
will be governed by definitive loan and related agreements and documentation
(collectively, the "Financing Documentation") in form and substance reasonably
satisfactory to the Lenders and to you. The Financing Documentation shall be
prepared by ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special counsel to the Lenders. The
Financing Documentation shall contain such covenants, terms and conditions as
are consistent with this letter and the Term Sheet and such other covenants,
terms, conditions, representations, warranties, events of default and remedies
provisions as shall be satisfactory to the Lenders and you.
Section 3. Conditions. The obligation of the Lenders under Section 1
of this letter to provide the Bridge Loan is subject to fulfillment of the
following conditions:
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Lennar Corporation
March 15, 2000
Page 3.
(a) Merger Agreement. You, ▇▇▇▇▇ and USH have entered into a Plan
and Agreement of Merger, dated as of February 16, 2000 (the "Merger
Agreement"), on terms and in form and substance reasonably satisfactory to
the Lenders. The Merger Agreement shall not have been amended in any
material respect without the consent of the Lenders, which consent shall
not be unreasonably withheld. All conditions precedent to the Merger
contained in the Merger Agreement shall have been performed or complied
with substantially on the terms set forth therein and not waived without
the consent of the Lenders, which consent shall not be unreasonably
withheld, and the Merger shall have been consummated.
(b) Tender Offer. You shall have made the Tender Offer on terms and
in form and substance reasonably satisfactory to the Co-Lenders, including
the elimination of restrictive covenants, and shall have used your best
efforts to solicit and accept for purchase on the Closing Date all of the
following USH debt issues (the "Target Issues"): 7.95% Senior Notes due
2001, 8.25% Senior Notes due 2004, 7.75% Senior Notes due 2005, 8.88%
Senior Subordinated Notes due 2007, and 8.875% Senior Subordinated Notes
due 2009. In addition, to the extent you shall not have accepted for
purchase 100% of each of the Target Issues, you shall have made
arrangements in form and substance satisfactory to the Co-Lenders (i) to
reduce permanently the Bank Financing, applying such reductions first
against the 364-day revolving credit portion and second against the
long-term revolving credit portion of the Bank Financing (any such
reduction to become effective 91 days after the Closing Date and to be
itself reduced by the aggregate principal amount of the Target Issues that
is retired pursuant to any "change of control" put; however, such amounts
will be temporarily unavailable under the Bank Financing until the 91 days
have passed and the "change of control" put has been funded or the Bank
Financing has been permanently reduced), (ii) to implement a "covenant
defeasance" in accordance with the terms of the indentures for the Target
Issues in accordance with the terms thereof, or (iii) to effect any
combination of (i) or (ii) above. To the extent Debt Securities are not
issued, the Bridge Loan will be funded in full on the Closing Date.
(c) Financing Documentation. You and the Lenders shall have entered
into the Financing Documentation relating to the Bridge Loan and the
transactions contemplated thereby on terms and in form and substance
reasonably satisfactory to you and the Lenders.
(d) Bank Financing. You shall have entered into definitive
documentation on terms and in form and substance reasonably satisfactory
to the Lenders with respect to the Bank Financing (collectively with all
documents and instruments related thereto or delivered in connection
therewith, the "Bank Documents") with a commercial lender or lenders or a
syndicate of commercial lenders. The Bank Documents shall be in full force
and effect, the parties thereto shall be in compliance with all material
agreements thereunder and proceeds of the initial drawing shall be
available.
(e) No Adverse Change or Development, Etc. (i) Nothing shall have
occurred since November 30, 1999 (and the Lenders shall have become aware
of no facts or conditions not previously known to the Lenders) which the
Lenders shall reasonably determine could have a material adverse effect on
the rights or remedies of the Lenders, or on your ability to perform your
obligations to the Lenders or which could have a materially adverse effect
on your business, property, assets, nature of assets, liabilities,
condition (financial or otherwise), results of operations or prospects
after giving effect to the Transaction; (ii) nothing shall have occurred
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Lennar Corporation
March 15, 2000
Page 4.
since September 30, 1999 (and the Lenders shall have become aware of no
facts or conditions not previously known to the Lenders) which the Lenders
shall reasonably determine, individually or in the aggregate, could have a
material adverse effect on the business, operations, results of
operations, properties, assets, liabilities or condition (financial or
otherwise) of USH; (iii) trading in securities generally on the New York
or American Stock Exchange shall not have been suspended; minimum or
maximum prices shall not have been established on any such exchange; (iv)
a banking moratorium shall not have been declared by New York or United
States authorities; and (v) there shall not have been (A) an outbreak or
escalation of hostilities between the United States and any foreign power,
or (B) an outbreak or escalation of any other insurrection or armed
conflict involving the United States or any other national or
international calamity or emergency, or (C) any material change in the
general financial markets of the United States which, in each case, in the
reasonable judgment of the Lender would materially and adversely affect
the ability to sell or place the Debt Securities.
(f) Capital Structure. Your pro forma consolidated capital structure
and Newco's pro forma consolidated capital structure, in both cases after
giving effect to the Transaction, shall be consistent with the capital
structure contemplated herein, and other than the Bridge Loan and the Bank
Financing neither you, Newco, USH nor any subsidiary, after giving effect
to, and upon consummation of, the Transaction, shall have incurred
indebtedness for money borrowed after the date hereof (other than pursuant
to revolving credit facilities existing on the date hereof and approved by
the Lenders). The $80 million secured revolving credit facility of USH's
subsidiary, U.S. Home Mortgage Corporation, that terminates September 30,
2001 shall remain available in such amount and any "change of control" or
other default or termination right resulting from the Merger shall have
been waived or eliminated or such facility shall have been replaced with a
revolving credit facility of at least the same size on terms and with
lenders satisfactory to the Lenders.
(g) Opinions. As of the Closing Date, the Lenders shall have
received a legal opinion from your counsel, and covering matters,
reasonably acceptable to the Lender.
(h) Due Diligence. The Lenders shall have completed their legal,
tax, accounting and environmental analysis and review and shall be
satisfied in their sole discretion with the results thereof. It is
understood and agreed that, following such completion, the Lenders shall
remove the condition contained in this paragraph or shall promptly notify
you of any non-satisfaction on their part with the due diligence
referenced above.
(i) Take-Out Bank. You shall have engaged the Joint Book-Running
Managers (the "Take-Out Bank") to publicly offer or privately place the
Debt Securities or equity or equity-linked securities, the proceeds of
which will be used to repay in whole or in part the Bridge Loan ("Take-Out
Securities"). You shall have prepared a registration statement or
prospectus supplement relating to the issuance of the Take-Out Securities
and the Take-Out Bank shall have been afforded the opportunity to market
and shall have marketed such Take-Out Securities pursuant to a prospectus
or prospectus supplement for such a period as is customary to complete the
sale of such securities. You, Newco and USH shall have used your
reasonable best efforts to assist the Take-Out Bank in marketing the
Take-Out Securities, including, without limitation, having prepared the
prospectus or prospectus supplement relating thereto, having made your
senior management and the senior management of USH and other
representatives of you and
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Lennar Corporation
March 15, 2000
Page 5.
USH available (at mutually agreeable times) to participate in meetings
with prospective investors and having provided such information and
assistance as the Take-Out Bank shall have reasonably requested during the
course of such marketing process.
Section 4. Securities Demand. The Financing Documentation will
provide that upon request (a "Request") from the Take-Out Bank made at any time
after the three month anniversary of the Closing Date and prior to the
Conversion Date (as defined in the Term Sheet), you shall take all reasonable
actions necessary or desirable, to the extent within your power, so that the
Take-Out Bank can, as soon as practicable after such Request, publicly offer or
privately place Debt Securities (the "Initial Request Date"). The Financing
Documentation will also provide that upon notice by the Take-Our Bank (a
"Take-Out Securities Notice"), at any time and from time to time following the
Initial Request Date, you will issue and sell Debt Securities upon such terms
and conditions as specified in the Take-Out Securities Notice; provided,
however, that for either a Request or a Take-Out Securities Notice (i) fixed
interest rates shall be determined by the Take-Out Bank in light of the then
prevailing market conditions, but in no event shall the interest rate on the
Debt Securities exceed 14% per annum; (ii) the maturity of any Debt Securities
shall not be earlier than 12 months after the scheduled maturity of the term
facility provided as part of the Bank Financing (as in effect on the Closing
Date); (iii) the Debt Securities will contain such terms, conditions and
covenants (including limitations as to optional redemption) as are customary for
similar high yield financings and as are satisfactory in all respects to you and
the Take-Out Bank; and (iv) all other arrangements with respect to the Debt
Securities shall be reasonably satisfactory in all respects to you and the
Take-Out Bank in light of the then prevailing market conditions. The foregoing
shall not limit your ability to refinance the Bridge Loan by other means.
In addition, you covenant and agree subsequent to the funding date
of any portion of the Bridge Loan to use your reasonable best efforts to assist
the Take-Out Bank in marketing the Debt Securities to refinance the Bridge Loan,
including, without limitation, preparing a prospectus supplement or an offering
memorandum relating thereto, making your senior management and the senior
management of USH and other representatives of you and USH available (at
mutually agreeable times) to participate in meetings with prospective investors
and providing such information and assistance as the Take-Out Bank shall
reasonably request during the course of such marketing process.
Section 5. Indemnification and Contribution. You agree to indemnify
the each Lender and each of its affiliates and each person in control of each
Lender and each of its affiliates and the respective officers, directors,
employees, agents and representatives of each Lender and its affiliates and
control persons, as provided in the Indemnity Letter dated the date hereof and
attached hereto (the "Indemnity Letter").
Section 6. Expenses. In addition to any fees that may be payable to
the Lenders as provided in the Fee Letter dated the date hereof and attached
hereto (the "Fee Letter") and regardless of whether any of the transactions
contemplated by this letter are consummated, if this letter agreement is
terminated, the Bridge Loan is made available or the Financing Documentation is
executed and delivered, you hereby agree to reimburse the Lenders for all
reasonable fees and disbursements of legal counsel, including but not limited to
the reasonable fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, the Lenders'
special counsel, and all of the Lenders' travel and other reasonable
out-of-pocket expenses incurred in connection with the Transaction or otherwise
arising out of the Lenders' commitment hereunder.
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Lennar Corporation
March 15, 2000
Page 6.
Section 7. Termination. The commitment hereunder to provide the
Bridge Loan shall terminate, unless expressly agreed to by the Lenders in their
sole discretion to be extended to another date, on the earlier of (A) 5:00 p.m.,
New York time, on June 3, 2000, if no portion of the Bridge Loan has been funded
(other than as a result of failure of the Lenders to fulfill their obligations
hereunder), and (B) the termination of the Merger Agreement or the Tender Offer
in accordance with the terms thereof. No such termination of such commitment
shall affect your obligations under Sections 5 and 6 hereof, which shall survive
any such termination.
Section 8. Assignment; Syndication. This letter shall not be
assignable by any party hereto without the prior written consent of the other
parties (other than, in the case of the Lenders, to an affiliate of the Lenders,
it being understood that any such affiliate shall be subject to the restrictions
set forth in this Section 8); provided, however, that the Lenders shall have the
right, in their sole discretion, to syndicate the Facility and their commitment
with respect thereto among banks or other financial institutions or qualified
institutional buyers (as defined in Rule 144A under the Securities Act of 1933)
pursuant to the Financing Documentation or otherwise and to sell, transfer or
assign all or any portion of, or interests or participations in, the Facility
and their commitment with respect thereto and any notes issued in connection
therewith; provided, further, that Bankers Trust Corporation shall be the
book-running syndication agent and any syndication shall reduce the Lenders'
respective commitment percentages on a pro rata basis. You agree to use your
reasonable best efforts, whether prior to or after the initial Funding Date of
any Bridge Loan, to assist the Lenders in syndicating the Facility or their
commitment with respect thereto, including, without limitation, in connection
with (x) the preparation of an information package regarding the Transaction,
including the Information and the Projections described in Section 1 hereof, and
(y) meetings and other communications with prospective Lenders, including making
your senior management and the senior management of USH and other
representatives of you and USH available (at mutually agreeable times) to
participate in such meetings.
Section 9. Miscellaneous. THIS LETTER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES GOVERNING CONFLICTS OF LAWS, AND ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR
CONTEMPLATED BY THIS LETTER IS HEREBY WAIVED. YOU HEREBY SUBMIT TO THE
NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN
THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS LETTER OR
ANY MATTERS CONTEMPLATED HEREBY. This letter (including the provisions of the
Fee Letter and the Indemnity Letter specifically incorporated herein) embodies
the entire agreement and understanding between you and the Lenders and
supersedes all prior agreements and understandings relating to the subject
matter hereof. This letter may be executed in any number of counterparts, each
of which shall be an original, but all of which shall constitute one instrument.
The Lenders reserve the right to employ the services of their
affiliates (including the Joint Book-Running Managers) in providing services
contemplated by this letter and to allocate, in whole or in part, to their
affiliates certain fees payable to the Lenders in such manner as the Lenders and
its affiliates may agree in their sole discretion. You acknowledge that the
Lenders may share with any of its affiliates (including the Joint Book-Running
Managers) and such affiliates may share with the Lenders (in each case, subject
to any confidentiality agreements applicable thereto), any information
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Lennar Corporation
March 15, 2000
Page 7.
related to you or your affiliates, USH (including information relating to
creditworthiness) or the Transaction.
This letter and the Term Sheet (collectively, the "Commitment
Letter") are furnished for your benefit, and may not be relied upon by any other
person or entity. You agree that the Commitment Letter is for your confidential
use only and that neither its existence nor the terms thereof will be disclosed
by you to any person other than your officers, directors, employees,
accountants, attorneys, lenders, lessors and other advisors, and then only on a
"need to know" basis in connection with the transactions contemplated hereby and
on a confidential basis. Notwithstanding the foregoing, following your
acceptance of the provisions hereof and your return of an executed counterpart
of the Commitment Letter to us as provided below, (i) you shall be permitted to
furnish a copy hereof to USH and its advisors in connection with the proposed
Merger, (ii) you may make public disclosure of the existence and amount of the
commitment under the Commitment Letter and the identity of the Lenders, (iii)
you may file a copy of the Commitment Letter in any public record in which it is
required by law to be filed and (iv) you may make such other public disclosure
of the terms and conditions hereof as, and to the extent, you are required by
law, in the opinion of your counsel, to make. Except as otherwise required by
law or unless the Lenders have otherwise consented, you are not authorized prior
to your acceptance of the Commitment Letter to show or circulate this letter to
any other person or entity (other than (x) your legal or financial advisors in
connection with your evaluation hereof and (y) to USH and its advisors in
connection with the proposed Merger).
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Lennar Corporation
March 15, 2000
Page 8.
If you are in agreement with the foregoing, please sign and return
to the Lenders at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ the enclosed copy
of this letter, the Indemnity Letter and the Fee Letter no later than 6:00 p.m.,
New York time, on March 17, 2000, whereupon the undertakings of the parties
shall become effective to the extent and in the manner provided hereby. This
offer shall terminate if not so accepted by you on or prior to that time.
Very truly yours,
BANKERS TRUST CORPORATION
By: _____________________________
Name:
Title:
Commitment Percentage: 50%
FIRST CHICAGO CAPITAL CORPORATION
By: _____________________________
Name:
Title:
Commitment Percentage: 50%
Accepted and Agreed to as of
the date first above written:
LENNAR CORPORATION
By: ____________________________
Name:
Title: