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EXHIBIT 10
THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT TO CREDIT AGREEMENT ("Amendment"), dated
as of November 4, 1996, among U.S. HOME CORPORATION, a Delaware corporation
(the "Borrower"), the Lenders that are parties to the Credit Agreement (as
hereinafter defined) and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (the
"Agent").
RECITALS:
A. The Borrower, the Lenders and the Agent have
previously entered into that certain Credit Agreement, dated as of
September 29, 1995, that certain Consent and First Amendment to Credit
Agreement, dated as of February 9, 1996, and that certain Second Amendment
to Credit Agreement, dated as of September 25, 1996 (such Credit
Agreement, as so amended, being herein referred to as the "Credit
Agreement").
B. The parties hereto desire to amend the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto, intending to be
legally bound, agree as follows:
1. DEFINITIONS
1.1 In addition to the terms defined herein,
capitalized terms used in this Amendment shall have the respective meanings
ascribed thereto in the Credit Agreement.
2. AMENDMENT OF SECTION 7.2
2.1 Section 7.2 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"7.2. Use of Proceeds. Subject to the provisions of this
Agreement, the Borrower will use the proceeds of the Advances for
general corporate purposes (including payment of reimbursement
obligations with respect to Facility Letters of Credit), and to
repay outstanding Advances and to engage in the transactions
otherwise permitted by this Agreement. Except as permitted by
Sections 8.6, 8.9 and 8.11 and otherwise permitted by this
Agreement, the Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to
purchase or carry any "margin stock" (as defined in Regulation U)
or, except as otherwise permitted by this Agreement, to purchase
any securities in any transaction that is subject to Sections 13
and 14 of the Securities Exchange Act of 1934, as amended. The
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Borrower will not permit any Non-Borrowing Subsidiaries to
receive, whether by loan or other Investment, or otherwise to use
any proceeds of, any Advance if the effect thereof would be to
increase the Investments of the Borrower or any Guarantor in any
Non-Borrowing Subsidiaries to an amount (in the aggregate) in
excess of such Investments as of August 31, 1995; provided that
the Borrower and the Guarantors may (i) make advances or loans to
or other Investments in Non-Borrowing Subsidiaries in an amount
not to exceed the aggregate amount of all advances, loans or
other Investments made by the Non-Borrowing Subsidiaries to the
Borrower after August 31, 1995 which have not been repaid to such
Non-Borrowing Subsidiaries and (ii) make Investments in the
Non-Borrowing Subsidiaries permitted under Section 8.6." 3.
AMENDMENT OF SECTION 8.1
3.1 Section 8.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"8.1. Dividends. The Borrower will not, nor will it permit any
Significant Guarantor to, declare or pay any dividends on its
capital stock (other than dividends payable in (a) its own
capital stock or (b) rights to acquire its own capital stock or
the capital stock of another Person), except that any Significant
Guarantor may declare and pay dividends to the Borrower or to a
Wholly-Owned Subsidiary."
4. AMENDMENT OF SECTION 8.6
4.1 Clause (xv) of Section 8.6 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
"(xv) The purchase, repurchase, repayment, prepayment,
redemption or other acquisition of (i) any of the Borrower's
capital stock and Convertible Subordinated Notes involving
expenditures (from and after the date hereof) not to exceed
$20,000,000 in the aggregate and as otherwise permitted
under Sections 8.9 and 8.11 hereof and (ii) rights issued by
the Borrower under a rights plan (the "Rights Plan");
provided, that, the redemption price per right to be
redeemed shall not exceed $.01."
5. AMENDMENT OF SECTION 8.9
5.1 Section 8.9 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"8.9 Redemption. The Borrower will not purchase or
redeem any of its capital stock heretofore or hereafter
issued, except that the Borrower may (x) purchase or
redeem its capital stock (i) to the extent that the
consideration for such redemption or purchase is
limited to capital stock of the Borrower or (ii) if the
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consideration for such purchase or redemption (A) is
other than capital stock of the Borrower and (B) does
not exceed, in the aggregate for all such purchases and
redemptions, and all purchases, repurchases,
repayments, prepayments, redemptions or other
acquisitions of the Convertible Subordinated Notes,
from and after the date hereof, $20,000,000 and (y)
purchase or redeem the rights issued under the Rights
Plan."
6. AMENDMENT OF SECTION 8.11
6.1 Section 8.11 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
8.11. Subordinated Indebtedness. The Borrower will
not, nor will it permit any Significant Guarantor to,
make any amendment or modification to the subordination
provisions of any indenture, note or other agreement
evidencing or governing any Subordinated Indebtedness,
or directly or indirectly voluntarily prepay, defease
or in substance defease, purchase, redeem, retire or
otherwise acquire, any Subordinated Indebtedness;
provided, however, that the foregoing shall not
prohibit (i) the conversion of the Convertible
Subordinated Notes in accordance with the Indenture
dated as of November 3, 1993 or an amendment permitting
such conversion at a lower conversion price than is
therein provided, (ii) the repayment or prepayment of
Subordinated Indebtedness solely from the net proceeds
of other Subordinated Indebtedness or from capital
stock or (iii) the purchase, repurchase, repayment,
prepayment, redemption or other acquisition of the
Borrower's capital stock and Convertible Subordinated
Notes involving expenditures (from and after the date
hereof) not to exceed $20,000,000 in the aggregate.
7. ADDITIONAL REQUIREMENTS
On or before the execution and delivery of this Amendment,
the Borrower shall:
7.1 deliver to the Agent the Consent of the Guarantors
in the form attached to this Amendment;
7.2 deliver to the Agent the favorable opinion of the
Borrower's counsel, ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP,
substantially in the form of Exhibit "A" to this Amendment.
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8. MISCELLANEOUS
8.1 This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement,
and any of the parties hereto may execute this Amendment by signing any
such counterpart.
8.2 In all respects, including all matters of
construction, validity and performance, this Amendment shall be construed
in accordance with the internal laws (and not the laws of conflicts) of
the State of Illinois, but giving effect to federal laws applicable to
national banks.
IN WITNESS WHEREOF, this Amendment has been duly executed
as of the date first above written.
U.S. HOME CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President - Finance and Chief
Financial Officer
LENDERS:
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
GUARANTY FEDERAL BANK, F.S.B.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANK ONE, ARIZONA, NA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
COMERICA BANK, a Michigan corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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CONSENT OF GUARANTORS
The undersigned, being the Guarantors under the
above-referenced Credit Agreement, do hereby consent to the foregoing
Third Amendment to Credit Agreement.
CANTERBURY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
COUNTRYPLACE GOLF COURSE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
HOMECRAFT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
IMPERIAL HOMES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
LODGE HOLDINGS CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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OCEANPOINTE DEVELOPMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CONSTRUCTION COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ HOMES CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇▇▇ CONSTRUCTION CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
RUTENBERG HOMES, INC. (FLORIDA)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
RUTENBERG HOMES, INC. (TEXAS)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
95
STONEY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
USH CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
USH CROSSCREEK, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
USH EQUITY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S. HOME CORPORATION OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S. HOME OF ARIZONA CONSTRUCTION CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
96
U.S. HOME OF COLORADO REAL ESTATE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S. HOME REALTY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S. HOME REALTY, INC. (MARYLAND)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S. HOME REALTY, INC. (TEXAS)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S. HOME AND DEVELOPMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
U.S.H. CORPORATION OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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U.S.H. LOS PRADOS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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Exhibit A
[▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP]
__________ __, 1996
The First National Bank of Chicago,
as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to U.S. Home Corporation, a Delaware
corporation (the "Borrower"), in connection with the preparation, execution
and delivery of the Third Amendment to Credit Agreement, dated as of
__________ __, 1996 (the "Third Amendment"), among the Borrower, the
lenders named therein and you, as agent (the "Agent"). Capitalized terms
used but not defined herein have the meanings set forth in the Credit
Agreement, dated as of September 29, 1995, among the Borrower, certain
lenders and the Agent, as amended from time to time.
We have examined such documents, instruments, records and certificates
of public officials and officers of the Borrower, and have reviewed such
questions of law, as we have deemed necessary or appropriate as a basis for
the opinion set forth below. As to any facts material to our opinion, we
have relied upon such documents, instruments, certificates and records.
Based on the foregoing, and subject to the limitations, qualifications
and exceptions set forth herein, in our opinion, the Third Amendment has
been duly authorized, executed and delivered by the Borrower.
The opinion set forth above is subject to the following assumptions
and qualifications:
We have assumed the Borrower is a corporation validly existing and in
good standing under the laws of Delaware. We have also assumed the
genuineness of all signatures, other than those of officers of the
Borrower, the authenticity of all documents submitted to us as originals,
and the conformity with the original documents of all documents submitted
to us as reproduced copies, and the authenticity of all such latter
documents.
Our opinion is limited to the Delaware General Corporation Law.
Our opinion is rendered solely for your information in connection with
the foregoing, and may not be relied upon by any other person or for any
other purpose without our prior written consent.
Very truly yours,