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EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT ("Amendment"), dated
as of September 25, 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, and that certain Consent and First Amendment to Credit Agreement
dated as of February 9, 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.
1.2 Article I of the Credit Agreement is amended by
amending and restating or adding, as the case may be, the definitions set
forth below:
"Borrowing Base" means, with respect to an
Inventory Valuation Date for which it is to be
determined, an amount equal to the sum of the following
assets of the Borrower and the Guarantors: (i) the
Receivables, multiplied by ninety percent (90%), (ii) the
book value of Housing Units Under Contract, multiplied by
eighty percent (80%), (iii) the book value of Inventory
Housing Units, multiplied by seventy percent (70%), but
not exceeding thirty percent (30%) of Total Senior Loan
Commitments, and (iv) the sum (but not exceeding
thirty-three and one-third (33 1/3%) percent of Total
Senior Loan Commitments) of (A) the book value of
Finished Lots, multiplied by fifty percent (50%) and (B)
the book value of Owned Land, multiplied by twenty-five
percent (25%).
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"Consolidated Senior Debt Borrowings" means, at
any date, with respect to the Borrower and the
Guarantors, on a consolidated basis, the outstanding
balance of all obligations described in clauses (i), (iv)
or (viii) of the definition of "Indebtedness" (including
the Obligations) calculated in accordance with Agreement
Accounting Principles but excluding (i) Indebtedness of
the Borrower to a Guarantor, a Guarantor to the Borrower
or a Guarantor to another Guarantor, and (ii) the
Convertible Subordinated Notes and any other Subordinated
Indebtedness.
"Facility Termination Date" means September 29,
1999, as the same may be extended as provided in Section
2.20.
"Owned Land" means land (other than Finished
Lots) owned or held by the Borrower or any Guarantor for
development or sale or land under development.
"Total Senior Loan Commitments" means, at any
date, on a consolidated basis for the Borrower and the
Guarantors, (i) the sum of (a) all outstanding
obligations described in clauses (i), (iv) and (viii) of
the definition of "Indebtedness" to Persons that are not
the Borrower, Subsidiaries of the Borrower or Affiliates
of the Borrower or of any of its Subsidiaries, plus (b)
all bona fide, binding but unfunded commitments
(including the Commitments) of banks or other financial
institutions with respect to the borrowing by the
Borrower or any Guarantor of obligations of the type
referred to in clause (a) above, except to the extent
that such commitments are subject to conditions that have
not been satisfied (other than customary conditions that
the Borrower and the Guarantors can reasonably be
expected to satisfy in the ordinary course of business),
less (ii) the sum of the outstanding amounts of the
Convertible Subordinated Notes and all other Subordinated
Indebtedness, all as determined in accordance with
Agreement Accounting Principles.
2. EXTENSION
The parties hereto acknowledge and agree that, pursuant
to Section 2.20 of the Credit Agreement, the Facility Termination Date has
been extended to September 29, 1999.
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3. AMENDMENT OF SECTION 8.6
3.1 Clause (ix) of Section 8.6 of the Credit Agreement
is hereby amended and restated in its entirety as follows:
(ix) Investments in Non-Borrowing Subsidiaries to the
extent permitted under the provisions of Section 7.2 and
other loans or advances to Non-Borrowing Subsidiaries
that are neither made nor outstanding at any time at
which any Loans (excluding Facility Letters of Credit)
are outstanding hereunder.
3.2 Section 8.6 of the Credit Agreement is further
amended by inserting the following clauses (xv) and (xvi) at the end
thereof:
(xv) The repurchase, repayment, prepayment, redemption or
other acquisition of any of the Convertible Subordinated
Notes involving expenditures not to exceed $15,000,000 in
the aggregate and as otherwise permitted under Section
8.11 hereof.
(xvi) Investments permitted under Section 8.9 hereof.
4. AMENDMENT OF SECTION 8.9
4.1 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 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
consideration for such purchase or redemption is other
than capital stock of the Borrower and does not exceed,
in the aggregate for all such purchases and redemptions
from and after the date hereof, $5,000,000; provided that
this Section 8.9 shall not prohibit the Borrower from
repurchasing, repaying, prepaying, redeeming or otherwise
acquiring Convertible Subordinated Notes to the extent
permitted under Section 8.6(xv) hereof.
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5. AMENDMENT OF SECTION 8.11
5.1 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 Borrower from repurchasing, repaying,
prepaying, redeeming, or otherwise acquiring Convertible
Subordinated Notes to the extent permitted by Section
8.6(xv) hereof.
6. CHANGE IN SCHEDULES
The Borrower (i) furnished, on the date hereof, to the
Agent a revised Schedule "6.8", and (ii) hereby certifies that such revised
Schedule is true, correct and complete in all material respects on the date
hereof. Such revised Schedule "6.8" shall be substituted for Schedule "6.8"
to the Credit Agreement.
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, Xxxx, Scholer, Fierman, Xxxx & Handler, substantially
in the form of Exhibit "A" to this Amendment; and
7.3 pay to the Agent the fees provided for in Section
2.20 of the Credit Agreement.
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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\ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Vice President - Finance and Chief
Financial Officer
LENDERS:
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: \s\ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
GUARANTY FEDERAL BANK, F.S.B.
By: \s\ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: \s\ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
BANK ONE, ARIZONA, NA
By: \s\ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
COMERICA BANK, a Michigan corporation
By: \s\ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
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
Second Amendment to Credit Agreement.
CANTERBURY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
COUNTRYPLACE GOLF COURSE, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
HOMECRAFT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
IMPERIAL HOMES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
LODGE HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
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OCEANPOINTE DEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
XXXXX XXXXXXXX CONSTRUCTION COMPANY
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
XXXXX XXXXXXXX HOMES CORP.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
XXXXXXXX CONSTRUCTION CO.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
RUTENBERG HOMES, INC. (FLORIDA)
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
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RUTENBERG HOMES, INC. (TEXAS)
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
STONEY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
USH CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
USH CROSSCREEK, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
USH EQUITY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
00
X.X. XXXX XXXXXXXXXXX XX XXX XXXX
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
U.S. HOME OF ARIZONA CONSTRUCTION CO.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
U.S. HOME OF COLORADO REAL ESTATE, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
U.S. HOME REALTY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
U.S. HOME REALTY, INC. (MARYLAND)
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
U.S. HOME REALTY, INC. (TEXAS)
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
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U.S. HOME AND DEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
U.S.H. CORPORATION OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
U.S.H. LOS PRADOS, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx
Vice President
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Exhibit A
[Xxxx, Scholer, Fierman, Xxxx & Handler, LLP]
September 25, 1996
The First National Bank of Chicago,
as Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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 Second Amendment to Credit Agreement, dated
September 25, 1996 (the "Second 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 Second
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,
/s/ Xxxx, Scholer, Fierman, Xxxx and Handler
