<PAGE> 1
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO .
COMMISSION FILE NUMBER 1-5899
U.S. HOME CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 21-0718930
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
10707 CLAY ROAD, HOUSTON, TEXAS 77041
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 877-2311
Securities Registered Pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
NAME OF EACH
TITLE OF EACH CLASS EXCHANGE ON WHICH REGISTERED
------------------- ----------------------------
<S> <C>
Common Stock, $.01 par value per share New York Stock Exchange
</TABLE>
Securities Registered Pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of January 31, 2000, the number of shares outstanding of registrant's
voting stock was 13,232,188 and the aggregate market value of the registrant's
voting stock held by nonaffiliates was $316,745,500.
DOCUMENTS INCORPORATED BY REFERENCE
NONE
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PART I
ITEM 1. BUSINESS
CURRENT EVENT
In February 2000, Lennar Corporation ("Lennar") entered into a definitive
agreement to acquire U.S. Home Corporation ("U.S. Home" or the "Company")
through a merger in which U.S. Home stockholders will receive a total of
approximately $476 million, of which approximately one-half will be in cash and
the remainder will be in common stock of Lennar (with the common stock portion,
and therefore the total purchase price, subject to adjustment if the price of
Lennar's stock is greater or lower than specified levels) in exchange for their
stock. U.S. Home will become a wholly-owned subsidiary of Lennar. At the time
the acquisition takes place, the Company's debt is expected to include bank debt
and approximately $525 million of publicly-held debt. The holders of the
publicly-held debt have the right to require U.S. Home to redeem such debt
within 90 days of the completion of the transaction, and the lenders under the
Company's Credit Facility can accelerate the debt outstanding thereunder. In
addition, the bank debt of certain of the Company's subsidiaries may become due
upon consummation of the merger. Lennar has informed the Company that it has
access to the resources required to close the transaction and, if necessary,
refinance U.S. Home's debt. The transaction is subject to approval by the
stockholders of both companies, as well as expiration or termination of any
applicable waiting periods under antitrust laws and other regulatory matters and
other customary closing conditions. If the necessary stockholder and regulatory
approvals are obtained and the other closing conditions are satisfied, the
Company expects the transaction to close by the end of May 2000. The definitive
merger agreement has been filed as an exhibit U.S. Home's current report on Form
8-K, which the Company filed with the Securities and Exchange Commission on
February 28, 2000.
Lennar has informed the Company that Lennar will account for the proposed
acquisition using the purchase method of accounting, which requires an
allocation of the purchase price to the assets acquired and liabilities assumed.
The Company's consolidated financial statements have been prepared on the
historical cost basis of accounting in accordance with generally accepted
accounting principles. The Company's historical cost basis of its net assets
(total shareholders' equity) is greater that the current estimated purchase
price.
GENERAL
U.S. Home, organized in 1954 and incorporated in the State of Delaware in
1959, is one of the largest single-family home builders in the United States
based on homes delivered. The Company currently builds and sells homes in more
than 240 new home communities in 33 market areas in 13 states. Since its
formation, the Company has delivered over 292,000 homes. In 1998, the Company
was the seventh largest single-family on-site home builder in the United States
based on homes completed and delivered and has been among the ten largest
single-family on-site home builders in the United States for more than 20 years.
The Company conducts substantially all of its home building business through
U.S. Home, the parent company.
The Company offers a wide variety of homes that are designed to appeal to
the affordable, move-up and retirement and active adult buyers. In each of its
markets, the Company's strategy is to build quality homes offering prospective
homebuyers a high level of new home value. The Company believes that many home
purchasers compare homes on the basis of location, perceived quality and dollars
of purchase price per square foot of living area. As a result, the Company
attempts to purchase land and lots in popular growth corridors, maintain high
quality standards, design homes to maximize living space and provide customers
with opportunities to choose interior and exterior features to enhance their
homes.
In addition to building and selling single-family homes, the Company
provides mortgage-banking services to its customers. The Company originates,
processes and sells mortgages to third party investors. The Company does not
retain or service the mortgages that it originates but rather, sells the
mortgages and related servicing rights to investors.
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OPERATIONS
The Company is engaged in two related industries: home building and
financial services. Corporate primarily includes the operations of the Company's
corporate office. Assets and results of operations of the Company's reportable
segments are separately disclosed in the Consolidated Financial Statements.
HOME BUILDING OPERATIONS
The Company's primary business is the on-site development of single-family
residential communities. During 1999, the Company's product mix consisted of
deliveries of approximately 35% affordable homes, 40% move-up homes and 25%
retirement and active adult homes.
MARKETS
U.S. Home currently conducts its building operations in the following
market areas:
<TABLE>
<CAPTION>
STATES MARKET AREAS
- ------ ------------
<S> <C>
Arizona.............................. Phoenix and Tucson
California........................... Corona/Fontana, Palm Springs, Sacramento and Temecula
Colorado............................. Colorado Springs, Denver and Fort Collins/Longmont/Loveland
Florida.............................. Bonita Springs, Clearwater/Palm Harbor, Fort Myers, New Port
Richey/Hudson, Naples, Orlando, Sarasota/Bradenton and
Tampa
Maryland/Virginia.................... Annapolis, Gainesville and Washington, D.C. area
Michigan............................. Auburn Hills(1)
Minnesota............................ Minneapolis/St. Paul
Nevada............................... Las Vegas
New Jersey........................... Berkeley/Jackson, Monroe/Franklin and Lumberton
North Carolina....................... Raleigh(1)
Ohio................................. Cleveland
Texas................................ Dallas/Fort Worth(1), Fredericksburg, Houston(1), McAllen/
Harlingen/Brownsville and San Antonio(1)
</TABLE>
- ---------------
(1) Includes communities owned by joint ventures in which the Company has a 50%
interest. See "Other", page 10.
The Company seeks to maintain geographic diversity and thus reduce the
potential risk of economic volatility in any given market.
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The tables below set forth information (expressed in number of housing
units) with respect to new orders taken, deliveries to purchasers and backlog of
single-family homes by state for each of the last three fiscal years:
NEW ORDERS TAKEN
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
STATES 1999 1998 1997
- ------ ------ ------ ------
<S> <C> <C> <C>
Arizona..................................................... 1,203 1,287 899
California.................................................. 639 873 636
Colorado.................................................... 1,409 1,404 1,285
Florida..................................................... 2,406 2,468 2,597
Maryland/Virginia........................................... 674 478 355
Minnesota................................................... 685 471 386
Nevada...................................................... 257 306 301
New Jersey.................................................. 455 427 422
Ohio........................................................ 55 136 111
Texas....................................................... 1,202 1,278 901
----- ----- -----
8,985 9,128 7,893
Joint venture activity(1)................................... 381 67 --
----- ----- -----
9,366 9,195 7,893
===== ===== =====
</TABLE>
DELIVERIES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
STATES 1999 1998 1997
- ------ ------ ------ ------
<S> <C> <C> <C>
Arizona..................................................... 1,365 1,012 850
California.................................................. 777 677 560
Colorado.................................................... 1,178 1,391 1,340
Florida..................................................... 2,474 2,462 2,304
Maryland/Virginia........................................... 589 394 351
Minnesota................................................... 753 445 319
Nevada...................................................... 278 307 327
New Jersey.................................................. 304 449 441
Ohio........................................................ 77 119 163
Texas....................................................... 1,274 1,002 841
----- ----- -----
9,069 8,258 7,496
Joint venture activity(1)................................... 177 -- --
----- ----- -----
9,246 8,258 7,496
===== ===== =====
</TABLE>
BACKLOG(2)
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
---------------------
STATES 1999 1998 1997
- ------ ----- ----- -----
<S> <C> <C> <C>
Arizona..................................................... 431 593 318
California.................................................. 283 421 225
Colorado.................................................... 830 599 586
Florida..................................................... 1,264 1,332 1,326
Maryland/Virginia........................................... 273 188 104
Minnesota................................................... 254 200 174
Nevada...................................................... 86 107 108
New Jersey.................................................. 289 138 160
Ohio........................................................ 27 49 32
Texas....................................................... 606 678 402
----- ----- -----
4,343 4,305 3,435
Joint venture activity(1)................................... 271 67 --
----- ----- -----
4,614 4,372 3,435
===== ===== =====
</TABLE>
- ---------------
(1) Includes communities owned by joint ventures in which the Company has a 50%
interest. See "Other" page 10.
(2) Homes under contract for sale but not delivered at end of year.
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The Company anticipates that substantially all of its backlog units, net of
cancellations, as of December 31, 1999 will be completed and delivered during
2000. While operations in certain market areas are affected by seasonal factors
which limit on-site building and sales activities, the Company's ability to
build and deliver its backlog is not considered to be seriously affected by such
factors.
Set forth below are revenues for the Company from the sale of single-family
homes by state for each of the last three fiscal years:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
STATES 1999 1998 1997
- ------ ---------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Arizona.......................................... $ 231,913 $ 162,103 $ 132,640
California....................................... 204,298 151,476 118,843
Colorado......................................... 251,931 263,019 238,288
Florida.......................................... 423,194 399,492 369,051
Maryland/Virginia................................ 128,365 74,275 66,651
Minnesota........................................ 174,608 81,544 61,503
Nevada........................................... 58,190 59,981 60,561
New Jersey....................................... 74,899 93,612 85,878
Ohio............................................. 17,998 26,256 35,492
Texas............................................ 187,438 133,577 109,408
---------- ---------- ----------
$1,752,834 $1,445,335 $1,278,315
========== ========== ==========
</TABLE>
SALES AND MARKETING
The Company employs sales consultants for the sale of single-family homes,
although sales by independent real estate brokers are also encouraged. Specific
sales training programs are provided which inform sales consultants about sales
techniques and methods as well as information about their local market, realtors
and products. The sales programs focus on the Company's Customer Assurance
Program as a marketing tool because the sales force is the first contact with
the customer. The Customer Assurance Program is a quality assurance program with
major emphasis on construction (see Construction below).
The Company markets homes in "model home parks" featuring one or more model
homes, attractively furnished and decorated and staffed by the Company's sales
consultants who provide information regarding floor plans, the various
elevations, options and upgrades available, as well as assisting with mortgage
financing information. The model may include a variety of options and upgrades
which the customer may request at an additional cost, and which include items
such as special floor and window treatments, custom cabinetry, pools, fireplaces
and decks. The Company constantly studies both aesthetic design and
architectural trends, as well as quality construction and engineering trends, in
order to provide customers with high quality, design and value. The Company has
received numerous awards in various markets for outstanding housing design.
The Company conducts its home building and marketing activities under the
name of U.S. Home in each of its markets except in Minneapolis/St. Paul where
the Company markets its homes under the name of Orrin Thompson Homes and
Lundgren Bros. Homes and in Florida where homes are marketed under the name of
Rutenberg Homes as well as U.S. Home. Joint venture activities are conducted
under the name of Heritage for the retirement communities and NuHome Designs for
the affordable communities.
The Company provides our customers the opportunity to purchase options and
upgrades for their new homes through U.S. Home Custom Design Studios. The Design
Studios bring our customers the benefit of individualizing their selections of
almost every design feature that goes into their homes. Design Studio sales
bring the Company the financial benefit of products sold with a retail markup.
The Company advertises primarily in magazines and local newspapers.
Additionally, homes are marketed by means of model homes, pictorial brochures
and on-site displays. The Company also maintains specific community information
at its internet home page which can be reached at http://www.ushome.com. The
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Company's general marketing strategy seeks to generate one-third of housing
sales through advertisements, one-third through customer referrals and one-third
through realtor contacts.
The Company's product lines include both single-family detached and
attached homes. During 1999, approximately 81% of the homes delivered were
single-family detached compared to 78% in 1998 and 80% in 1997. The number of
units and average sales prices of single-family homes delivered were as follows
for the last three years:
<TABLE>
<CAPTION>
SINGLE-FAMILY DETACHED SINGLE-FAMILY ATTACHED
----------------------- ----------------------
NUMBER AVERAGE NUMBER AVERAGE
OF UNITS SALES PRICE OF UNITS SALES PRICE
-------- ----------- -------- -----------
<S> <C> <C> <C> <C>
1999....................................... 7,338 $202,500 1,731 $154,000
1998....................................... 6,476 $182,600 1,782 $147,600
1997....................................... 5,960 $178,000 1,536 $141,200
</TABLE>
Selling prices are set in each area based on product features, local market
conditions and competitive factors. In 1999, the national average sales price of
new single-family homes (both detached and attached) as reported on a
preliminary basis by the U.S. Census Bureau was $194,000 compared with an
average sales price of $193,300 for the Company.
Variations in the general product and customer mix may exist from year to
year based on shifts in local market demand or product availability. The table
below sets forth the mix of the Company's deliveries for the affordable, move-up
and retirement and active adult home products during the last three years:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Affordable.................................................. 35% 35% 33%
Move-up..................................................... 40% 39% 40%
Retirement and active adult................................. 25% 26% 27%
</TABLE>
The Company has set a goal to increase its annual deliveries to over 10,000
homes in the year 2000, and to have one-third of deliveries within the next two
years in the retirement and active adult products. However, there can be no
assurance such efforts will be successful.
The Company presently has 30 retirement, active adult and intergenerational
communities open in Arizona, California, Colorado, Florida, Nevada, New Jersey,
Ohio, Texas and Virginia and a joint venture community in both Michigan and
North Carolina. During the next two years, the Company plans to open 10
additional retirement, active adult and intergenerational communities. They
include one new community in California, four in Florida, three in New Jersey,
one in Texas and one in Colorado.
Many purchasers finance a large portion of the purchase price of a home
through conventional or government insured/guaranteed mortgages from lending
institutions. The Company generally assists purchasers in obtaining mortgages.
Approximately 86% of the homes delivered in 1999, 84% delivered in 1998 and 81%
delivered in 1997, were purchased using mortgage financing.
The Company takes steps to qualify certain of its homes under Veterans
Administration ("VA") and Federal Housing Administration ("FHA") mortgage
programs, which provide financing sources. Approximately 21% of the homes
delivered in 1999, 19% of the homes delivered in 1998 and 17% of the homes
delivered in 1997 were financed under VA and FHA mortgage programs.
CONSTRUCTION
The Company's investment in direct employee labor costs, equipment and
facilities is kept to a minimum because most construction of single-family homes
is performed by independent subcontractors. At all stages of construction,
however, on-site Company managers supervise and coordinate the activities of
these subcontractors and subject their work to quality and cost control
standards. The Company's Director of Construction and Quality Initiative
Programs provides centralized management of quality standards and supervises the
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<PAGE> 7
Company's Customer Assurance Program with respect to the construction of homes.
The Company's Director of National Purchasing provides centralized management
for the purchase of certain major components used in the construction of homes.
Company employees are rated and compensation incentives are affected by a
measure of quality standards.
Construction subcontractors are selected on the basis of competitive bids
and written agreements govern their relationship with the Company. All bids are
based on detailed specifications and complete blueprints to ensure commitment to
the Company's expectation for high quality workmanship.
The Company purchases the majority of its construction material on a
decentralized basis with a "just in time" delivery schedule to each individual
job site. Materials are regularly purchased on a competitive bid basis to ensure
both competitive pricing and high quality. In addition to local purchasing, the
Company has entered into a number of national purchasing agreements in order to
maximize purchasing power. Agreements with each vendor are negotiated on an
annual basis by the Company's Director of National Purchasing.
In order to minimize the risk associated with completed but unsold
inventory, the Company generally does not commence construction of a
single-family detached home prior to receipt of an executed purchase contract, a
deposit from the customer and preliminary mortgage approval based on the
purchaser's mortgage application. For single-family attached homes, construction
does not generally commence until 50% of the units in a building have been sold.
REGULATION
The Company and its subcontractors must comply with various federal, state
and local zoning, building, pollution, environmental, health, advertising and
consumer credit statutes, ordinances, rules and regulations, as well as
regulations relating to specific building materials to be used, building design
and minimum elevations of properties. All of these regulations have increased
the time and cost required to market the Company's products by extending the
time between the initial acquisition of land and the commencement of
construction. The Company's operations, like those of other home builders, have
been periodically subject to moratoriums on development activities caused by
insufficient water, sewage and energy-related facilities. Moratoriums in local
areas have not had a material adverse effect on the Company's overall activities
because of the geographic diversification of the Company's operations.
COMPETITION
The single-family residential housing industry is highly competitive. U.S.
Home competes in each of its markets, with respect to the location, design and
price of its products, with numerous firms engaged in the on-site development of
single-family residential housing, ranging from regional and national firms to
small local companies. The Company is one of the largest on-site builders of
single-family homes in the United States, ranking among the ten largest
single-family on-site home builders in the United States for more than 20 years.
However, because there are so many firms engaged in the single-family home
building industry, the Company accounts for less than 1% of all new on-site
single-family housing sales in the United States.
RAW MATERIALS AND SUBCONTRACTORS
The Company uses numerous suppliers of raw materials and services in its
business and such materials and services have been and continue to be available.
Where appropriate, the Company has adopted national programs for products to
maximize price discounts through volume purchases. The Company also utilizes
numerous independent subcontractors representing all building trades in
connection with the construction of its homes.
COMMUNITY DEVELOPMENT
For a number of years, a significant portion of the Company's finished lot
needs, primarily in its affordable and move-up communities, have been satisfied
through rolling lot options, which enable the Company to initially pay a small
fraction of total lot cost and then purchase the lots on a scheduled basis. For
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<PAGE> 8
example, during 1999, 31% of the Company's unit deliveries were from lots
acquired by the exercise of rolling lot options as compared with 36% in 1998 and
37% in 1997. The remainder of the Company's unit deliveries were from lots
developed by the Company. See Management's Discussion and Analysis of Financial
Condition and Results of Operations-Financial Condition and Liquidity, Housing.
The Company's policy provides that land cannot be purchased or sold without
prior approval of the Company's Asset Management Committee. Asset Management
Committee approval requires submission of data relating to sales forecasts, a
timing schedule (e.g., estimated dates for the commencement of land development,
housing construction, model opening and sales) and a projection of income and
internal rate of return. The Senior Vice President-Community Development and the
appropriate President of Operations review all development expenditures prior to
the commencement of development. In addition, the Company's by-laws require
approval by the Company's Board of Directors of any acquisition of unimproved
real property or acreage by the Company which is material to the Company in any
single transaction involving an expenditure in excess of $10 million and any
other material capital expenditures, borrowings (subject to certain exceptions)
and other commitments by the Company in excess of $10 million per transaction
(excluding transactions involving housing inventory).
The Presidents of Operations and the Division Presidents are responsible
for maintaining continuity of housing sales through awareness of trends in
housing demand in each market area. The Company generally requires feasibility
studies and market research studies before approval of the purchase of land.
These studies examine the demographics of an area, including population trends,
income trends, employment trends, housing stock and housing demand. The Company
matches products to our customer profile, determined in part by the market
studies and in part by the experience of the local manager in each market.
Housing communities are generally built in or near major metropolitan areas
and are normally located in growing markets for such areas. At December 31,
1999, the Company's land and finished lot inventories totaled $679.3 million,
excluding option deposits. See Note 2 of Notes to Consolidated Financial
Statements. Substantially all housing communities are zoned for their intended
use and serviced by utilities. As of December 31, 1999, the Company had
refundable and nonrefundable deposits totaling $47.2 million for options and
contracts to purchase undeveloped land and finished lots for home building
operations for a total purchase price of approximately $539.1 million. The
Company has incurred pre-development costs of approximately $56.0 million
relating to these properties.
The following table sets forth as of December 31, 1999, by state, the cost
of certain of the Company's land inventories and the estimated number of lots
controlled through direct ownership and under option which are being used or
that are anticipated to be used in the Company's home building operations:
<TABLE>
<CAPTION>
ESTIMATED NUMBER OF HOUSING
UNITS THAT COULD BE CONSTRUCTED
ON LAND CONTROLLED AS OF
DECEMBER 31, 1999(1)
--------------------------------
BOOK COST OF UNDER
STATES LAND OWNED OWNED OPTION TOTAL
- ------ --------------------- -------- -------- --------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
Arizona............................... $ 66.0 3,054 745 3,799
California............................ 87.7 1,853 3,124 4,977
Colorado.............................. 114.9 5,759 3,732 9,491
Florida............................... 154.0 9,893 13,253 23,146
Maryland/Virginia..................... 61.4 2,504 915 3,419
Minnesota............................. 46.0 1,605 2,842 4,447
Nevada................................ 36.9 737 2 739
New Jersey............................ 27.8 820 2,007 2,827
Ohio.................................. 15.3 350 82 432
Texas................................. 52.0 4,243 1,462 5,705
------ ------ ------ ------
$662.0 30,818 28,164 58,982
====== ====== ====== ======
</TABLE>
7
<PAGE> 9
- ---------------
(1) The estimates set forth above have been prepared based on numerous
assumptions made at the date hereof, many of which are beyond the control of
the Company. Many of these assumptions, and hence the estimates, are subject
to change and there can be no assurances that such lots will be used or as
to when they will be used. This table does not include commercial property
and other properties which the Company has no current plans to use, with an
aggregate cost of $17.3 million (including $3.3 million relating to land
under contract for sale). In view of the various stages of development of
the land owned or controlled by the Company as of December 31, 1999 (i.e.,
finished, under development and development not started), any per lot cost
derived by dividing the book cost by the estimated number of units would not
be meaningful.
Inventory risk is substantial for all home building companies. The market
value of housing inventories, finished lots and raw land can change
significantly over the life of a community, reflecting dynamic market
conditions. In addition, inventory carrying costs are significant, which can
result in losses when trying to exit a poorly performing community or market.
The Company seeks to reduce its risks associated with housing inventories,
finished lots and raw land through (i) maintaining its geographic diversity and
(ii) acquiring lots and land under option where possible, thereby enabling the
Company to control land and lots with a smaller capital investment.
In 1999, the Company's revenues from the sale of developed and undeveloped
land amounted to $28.1 million, as compared to revenues of $17.6 million in 1998
and $13.7 million in 1997.
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<PAGE> 10
FINANCIAL SERVICES OPERATIONS
The Company's financial services business consists primarily of its
mortgage banking activities. U.S. Home Mortgage Corporation ("Mortgage"), a
wholly-owned subsidiary of the Company, commenced operations in 1971 and serves
an important role in the Company's sale of its homes by arranging financing for
customers.
Mortgage is a Federal National Mortgage Association/Government National
Mortgage Association/Federal Home Loan Mortgage Corporation approved
seller-servicer, headquartered in Clearwater, Florida. Mortgage has 22 branch
and satellite offices which serve most of the market areas where the Company
conducts its home building operations. The Company offers a wide variety of
conventional, FHA and VA financing programs through Mortgage, thereby providing
prospective buyers the benefits of both conventional and government-assisted
loan programs. As a mortgage banker, Mortgage originates and funds mortgage
loans and sells the loans and the related servicing rights directly to
investors. Loans and servicing rights are generally sold by Mortgage and funded
by the investors within 30 days after home delivery. To limit its risk of
interest rate fluctuations, Mortgage regularly enters into fixed price mandatory
forward delivery contracts to sell mortgage-backed securities to securities
dealers or fixed price forward commitments to deliver loans to investors on a
mandatory or best efforts basis. Mortgage has a secured revolving line of credit
to fund the mortgage loans on an interim basis until purchased by investors. See
Note 3 of Notes to Consolidated Financial Statements.
The following table summarizes certain mortgage banking operating
information for the three years ended December 31, 1999:
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Residential mortgage loans
Number of loans originated......................... 6,673 6,050 4,761
Average amount of loan originated.................. $ 149 $ 141 $ 138
Total amount of loans originated:
Funded by Mortgage.............................. $889,000 $769,000 $604,000
Brokered by Mortgage............................ 108,000 84,000 54,000
-------- -------- --------
Total...................................... $997,000 $853,000 $658,000
======== ======== ========
Company's homes delivered financed by Mortgage as a
percentage of Company's homes delivered which were
financed........................................... 82% 83% 76%
Company's homes delivered financed by Mortgage as a
percentage of Mortgage's total originations........ 96% 95% 97%
</TABLE>
While the Company continues to focus its attention primarily upon the
expansion of Mortgage's operations within the Company's own customer base,
Mortgage also offers its services to realtors, unaffiliated builders and
refinance customers.
Among the factors affecting Mortgage's operations are general economic
conditions, federal, state and local regulatory constraints, consumer confidence
and interest rate volatility. These factors, together with the number of homes
delivered by the Company, affect the volume of loan originations which in turn
impact the resulting volume of mortgage loans and mortgage servicing rights
available for sale.
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OTHER
The Company created its "Builders Joint Venture Program for Active Adult
Communities" to partner with local builders in markets not served by U.S. Home,
enabling an expansion of our active adult community activities outside of the
Company's traditional areas of operation. To date, the Company has formed joint
ventures in Michigan and North Carolina under this program.
In 1998, the Company and GIG Desarrolladores Inmobiliarios ("GIGDI"), the
fourth largest homebuilder in Mexico, formed a joint venture to build affordable
homes in Dallas, Houston and San Antonio, Texas.
The Company has a 50% interest in each of these joint ventures. The table
below sets forth the new orders taken, deliveries to customers and backlog of
single-family homes of these joint ventures for the two years ended December 31,
1999 and 1998.
<TABLE>
<CAPTION>
1999 1998
------------------------------- -------------------------------
RETIREMENT AFFORDABLE TOTAL RETIREMENT AFFORDABLE TOTAL
---------- ---------- ----- ---------- ---------- -----
<S> <C> <C> <C> <C> <C> <C>
New Orders Taken........................... 89 292 381 35 32 67
Deliveries................................. 46 131 177 -- -- --
Backlog.................................... 78 193 271 35 32 67
</TABLE>
ADDITIONAL INFORMATION
EMPLOYEES
At December 31, 1999, the Company had 2,415 employees. None of the
Company's employees are represented by a union. The Company considers its
relations with its employees to be good. The Company's single-family housing and
community development operations are conducted primarily through independent
subcontractors, thereby limiting the number of direct employees required.
ITEM 2. PROPERTIES
The Company owns a 52,000 square foot office building located at 10707 Clay
Road, Houston, Texas 77041, that serves as its executive offices. The Company
does not believe that its executive offices or its other facilities, consisting
of sales and administrative offices located in or near each of the Company's
areas of operations and generally held under leases with terms not exceeding
five years, are material to its operations. The Company believes its properties
are suitable and adequate for its operations.
ITEM 3. LEGAL PROCEEDINGS
The Company is involved from time to time in litigation arising from the
normal course of business, none of which, in the opinion of the Company, is
expected to have a material adverse effect on the financial position or results
of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
10
<PAGE> 12
EXECUTIVE OFFICERS OF THE COMPANY
The Company's executive officers during 1999 and their respective ages and
positions are set forth below:
<TABLE>
<CAPTION>
NAME AGE POSITION AND OFFICE
- ---- --- -------------------
<S> <C> <C>
Robert J. Strudler.................... 57 Chairman and Co-Chief Executive
Officer
Isaac Heimbinder...................... 56 President, Co-Chief Executive Officer
and Chief Operating Officer
Gary L. Frueh......................... 59 Senior Vice President -- Tax and Audit
Craig M. Johnson...................... 46 Senior Vice President -- Community
Development
Chester P. Sadowski................... 53 Senior Vice President -- Controller
and Chief Accounting Officer
Frank E. Matthews, II................. 50 Vice President -- Human Resources
Thomas A. Napoli...................... 58 Vice President -- Corporate Finance
and Treasurer
Richard G. Slaughter.................. 55 Vice President -- Planning and
Secretary
Kelly F. Somoza....................... 46 Vice President -- Investor Relations
</TABLE>
No family relationship exists among any of the executive officers of the
Company.
Each of the foregoing officers has been elected to serve in the office
indicated until the first meeting of the Board of Directors following the next
annual meeting of stockholders of U.S. Home and until his or her successor is
elected and qualified.
Mr. Strudler has served as Chairman and Co-Chief Executive Officer since
April 26, 1995; prior thereto, he had been Chairman and Chief Executive Officer
of the Company since May 12, 1986.
Mr. Heimbinder has served as President, Co-Chief Executive Officer and
Chief Operating Officer since April 26, 1995; prior thereto, he had been
President and Chief Operating Officer of the Company since May 12, 1986.
Mr. Frueh has served as Senior Vice President -- Tax and Audit since June
11, 1998; prior thereto, he had been Vice President -- Tax and Audit since
February 5, 1992.
Mr. Johnson has served as Senior Vice President -- Community Development
since April 26, 1995; prior thereto, he had been Vice President -- Community
Development since June 11, 1992.
Mr. Sadowski has served as Senior Vice President -- Controller and Chief
Accounting Officer since June 11, 1998; prior thereto, he had been Vice
President -- Controller and Chief Accounting Officer since December 17, 1987.
Mr. Matthews has served as Vice President -- Human Resources since April
23, 1997; prior thereto, he had been Director-Human Resources since February 15,
1991.
Mr. Napoli has served as Vice President -- Corporate Finance and Treasurer
since February 13, 1997; prior thereto, he had been Vice President -- Finance
and Chief Financial Officer since April 21, 1989.
Mr. Slaughter has served as Vice President -- Planning and Secretary since
December 18, 1986.
Ms. Somoza has served as Vice President -- Investor Relations since
December 6, 1996; prior thereto, she had been a Vice President since June 11,
1992. Ms. Somoza is also the administrator of the Company's profit sharing and
employees' savings programs.
11
<PAGE> 13
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
As of February 4, 2000, there were approximately 1,785 holders of record of
the Company's common stock, $.01 par value per share. The principal market on
which the common stock is traded is the New York Stock Exchange. Information
concerning the high and low sales prices for the Company's common stock for each
calendar quarter during 1999 and 1998 is set forth below:
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, 1999 DECEMBER 31, 1998
----------------- -----------------
CALENDAR QUARTER HIGH LOW HIGH LOW
- ---------------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
First............................................... $38.44 $30.63 $46.50 $36.44
Second.............................................. $35.63 $29.75 $47.88 $36.81
Third............................................... $36.19 $26.19 $44.19 $26.75
Fourth.............................................. $29.81 $24.18 $36.19 $25.56
</TABLE>
No dividends were paid by the Company during 1999 or 1998. The Company's
credit agreement (the most restrictive of the Company's borrowing agreements)
limits the payment of cash dividends in any fiscal quarter to fifty percent of
the Company's consolidated net income (as defined in the credit agreement) for
the preceding fiscal quarter.
12
<PAGE> 14
ITEM 6. SELECTED FINANCIAL DATA
U.S. HOME CORPORATION AND SUBSIDIARIES
CONSOLIDATED SELECTED FINANCIAL DATA
FOR THE FIVE YEARS ENDED DECEMBER 31, 1999
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------------------------
1999 1998 1997 1996 1995
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Operating Revenues...................... $1,824,456 $1,497,649 $1,319,752 $1,211,450 $1,107,945
Income Before Income Taxes and
Extraordinary Loss.................... 115,832 89,293 74,900 55,901 59,072
Income Taxes............................ 43,437 25,564 27,713 11,713 22,152
---------- ---------- ---------- ---------- ----------
Income Before Extraordinary Loss........ 72,395 63,729 47,187 44,188 36,920
Extraordinary Loss, Net of Income Tax
Benefit............................... -- 3,026 8,650 -- --
---------- ---------- ---------- ---------- ----------
Net Income.................... $ 72,395 $ 60,703 $ 38,537 $ 44,188 $ 36,920
========== ========== ========== ========== ==========
Basic Earnings Per Share:
Income before extraordinary loss...... $ 5.41 $ 4.99(1) $ 4.08 $ 3.88(2) $ 3.29
Extraordinary loss.................... $ -- $ (.24) $ (.75) $ -- $ --
Net Income............................ $ 5.41 $ 4.75(1) $ 3.33 $ 3.88(2) $ 3.29
Diluted Earnings Per Share:
Income before extraordinary loss...... $ 5.30 $ 4.68(1) $ 3.50 $ 3.28(2) $ 2.78
Extraordinary loss.................... $ -- $ (.22) $ (.62) $ -- $ --
Net Income............................ $ 5.30 $ 4.46(1) $ 2.88 $ 3.28(2) $ 2.78
Dividends Per Share..................... $ -- $ -- $ -- $ -- $ --
BALANCE SHEET DATA (at year end):
Total Assets............................ $1,602,640 $1,352,976 $1,067,114 $ 947,411 $ 842,084
========== ========== ========== ========== ==========
Revolving Credit Facilities --
Corporate and Housing................. $ 97,000 $ 130,000 $ 29,000 $ -- $ 24,000
Financial Services.................... 83,485 33,112 40,343 42,414 35,371
---------- ---------- ---------- ---------- ----------
$ 180,485 $ 163,112 $ 69,343 $ 42,414 $ 59,371
========== ========== ========== ========== ==========
Long-Term Debt -- Corporate and
Housing............................... $ 553,089 $ 424,980 $ 395,918 $ 362,887 $ 300,599
========== ========== ========== ========== ==========
</TABLE>
- ---------------
(1) In 1998, basic earnings per share included $.59 per share and diluted
earnings per share included $.54 per share due to the effect of a $7,474 tax
benefit.
(2) In 1996, basic earnings per share included $.04 per share and diluted
earnings per share included $.03 per share due to the net effect of an
$8,233, net of tax, provision for impairment of land inventories and an
$8,691 tax benefit.
13
<PAGE> 15
ITEM 7.MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
U.S. Home had record performance for the three years ended December 31,
1999. In 1999 total revenues increased 22% to $1.8 billion from $1.5 billion in
1998, net income increased 29% to $72.4 million compared to $56.3 million in
1998 and diluted earnings per share increased 28% to $5.30 per share from $4.14
per share in 1998. In 1998 total revenues increased 13% to $1.5 billion from
$1.3 billion in 1997, net income increased 19% to $56.3 million compared to
$47.2 million in 1997 and diluted earnings per share increased 18% to $4.14 per
share from $3.50 per share in 1997. Net income and earnings per share exclude a
tax benefit in 1998 and an extraordinary loss in 1998 and 1997.
HOUSING
The following table sets forth certain financial information for the
Company's housing segment for the periods indicated (dollars in thousands,
except average sales price):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------
1999 1998 1997
---------- ---------- ----------
<S> <C> <C> <C>
Revenues --
Single-family homes.......................... $1,752,834 $1,445,335 $1,278,315
Land and other............................... 33,153 18,737 15,785
---------- ---------- ----------
Total................................ $1,785,987 $1,464,072 $1,294,100
========== ========== ==========
Single-family homes --
Gross margin amount.......................... $ 323,731 $ 265,977 $ 229,980
Gross margin percentage...................... 18.5% 18.4% 18.0%
Units delivered................................ 9,069 8,258 7,496
Average sales price............................ $ 193,300 $ 175,000 $ 170,500
New orders taken............................... 8,985 9,128 7,893
Backlog at end of year:
Aggregate sales value........................ $ 946,557 $ 834,072 $ 608,974
Units........................................ 4,343 4,305 3,435
Selling, general and administrative expenses as
a percentage of housing revenues............. 9.8% 9.6% 9.5%
Interest --
Paid or accrued.............................. $ 60,459 $ 46,597 $ 38,153
Percentage capitalized....................... 100.0% 100.0% 100.0%
Previously capitalized interest included in
interest expense.......................... $ 45,490 $ 40,787 $ 33,789
Percentage of housing revenues............... 2.5% 2.8% 2.6%
</TABLE>
Revenues
Revenues from sales of single-family homes for 1999 increased 21% from
1998. The increase resulted from a 10% increase in the number of housing units
delivered and a 10% increase in the average sales price. Revenues from sales of
single-family homes for 1998 increased 13% from 1997, resulting primarily from a
10% increase in the number of housing units delivered and a 3% increase in the
average sales price. The increases in average sales price reflect price
increases, product and geographical mix and higher revenue contributions from
options and upgrades sold through our design centers.
Gross Margins
The single-family home gross margin percentage for 1999 improved 10 basis
points from 1998 and 1998 improved 40 basis points from 1997. The increase in
the gross margin percentage for 1999 from 1998 reflects product and geographic
mix and price increases. The increase in the gross margin percentage in 1998
from
14
<PAGE> 16
1997 reflects the continuation of strong overall market conditions and gross
margin improvements in certain of the Company's markets. There can be no
assurance margins will continue to improve because they could be adversely
affected by future events, including a change in the competitive housing
environment and increases in construction labor and material costs.
New Orders Taken
New orders taken in 1999 decreased 2% from 1998. The nominal decline in new
orders taken reflects a flat community count during the early part of 1999 as
the number of communities selling out ahead of schedule outpaced efforts to open
new communities. New orders taken in 1998 increased 16% from 1997. The increase
in new orders taken in 1998 reflects the continued demand for new single-family
homes which the Company believes was brought about by strong consumer
confidence, opening of new home communities and stable mortgage interest rates.
Backlog
The aggregate sales value of backlog at December 31, 1999 increased 13%
compared to December 31, 1998, and at December 31, 1998 increased 37% compared
to December 31, 1997. The increases in the value of the backlog reflect the
increases in the number of units under contract and increases in the average
sales price to $218,000 in 1999 from $193,700 in 1998 and to $193,700 in 1998
from $177,300 in 1997. Substantially all of the Company's backlog units at
December 31, 1999, net of cancellations, are expected to result in revenues in
2000.
Selling, General and Administrative Expenses
As a percentage of housing revenues, selling, general and administrative
expenses in 1999 increased when compared to 1998 and in 1998 increased when
compared to 1997. Actual selling, general and administrative expenses for 1999
increased $33.7 million compared to 1998. This increase was due to increases in
volume-related expenses ($10.7 million) resulting from increased deliveries in
1999 when compared to 1998, a $2.8 million fourth quarter charge primarily to
reserve certain option deposits and increased payroll costs and marketing center
expenses resulting from increased activities and profitability. Excluding this
charge, selling, general and administrative expenses as a percentage of housing
revenues for 1999 were flat at 9.6% compared to 1998. Actual selling, general
and administrative expenses for 1998 increased $17.6 million compared to 1997.
This increase was primarily due to increases in volume-related expenses ($5.8
million) resulting from an increase in deliveries in 1998 when compared to 1997
and increased payroll costs and marketing center and other marketing expenses
resulting from increased activities and profitability.
Interest
Interest paid or accrued for 1999 increased approximately 30% compared to
1998 and increased approximately 22% in 1998 compared to 1997. These increases
resulted from an increase in the average amount of outstanding debt. The Company
experienced higher debt levels due to higher single-family housing inventories
resulting from increased activities.
The Company capitalizes interest cost into housing inventories and charges
the previously capitalized interest to interest expense when the related
inventories are delivered. The amount of interest capitalized and previously
capitalized interest expensed in any one year is a function of the amount of
housing assets, land sales and the number of housing units delivered, average
outstanding debt levels and average interest rates. Previously capitalized
interest amounts charged to interest expense in 1999 increased 12% compared to
1998 and in 1998 increased 21% compared to 1997. These increases were
attributable to the increases in the number of housing units delivered and an
increase in the average interest expense per housing unit delivered.
15
<PAGE> 17
FINANCIAL SERVICES
Revenues
The financial services segment had revenues for the three years ended
December 31, 1999 as follows:
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
U.S. Home Mortgage Corporation and Subsidiary
("Mortgage").......................................... $33,242 $28,951 $21,648
Other financial services operations..................... 5,227 4,626 4,004
------- ------- -------
$38,469 $33,577 $25,652
======= ======= =======
</TABLE>
Mortgage provides financing primarily to purchasers of homes sold by the
Company's housing operations through origination of residential mortgage loans
and engages in the sale of such mortgages and related servicing rights to
unaffiliated investors. Mortgage's operations are affected, among other things,
by general economic conditions, consumer confidence and interest rate
volatility. These factors, together with the number of homes delivered by the
Company, affect the volume of loan originations which in turn impact the
resulting volume of mortgages and servicing rights for sale.
The increase in Mortgage's revenues in 1999 from 1998 and in 1998 from 1997
was primarily due to an increase in mortgage loan originations and income from
the sale of mortgage loans and servicing rights.
Mortgage's "capture rate" for providing financing to buyers of homes
delivered by the Company was 82% in 1999 compared to 83% and 76% in 1998 and
1997, respectively. Since a certain percentage of buyers typically elect to use
other sources of financing, the Company believes Mortgage's capture rate is near
the maximum capture rate.
OTHER
Corporate General and Administrative
Corporate general and administrative includes the operations of the
Company's corporate office. As a percentage of total revenues, such expenses
were .8%, .9% and .9% for 1999, 1998 and 1997, respectively. Actual corporate
overhead expenses for 1999 totaled $14.2 million compared with $13.1 million for
1998 and $11.7 million for 1997.
Income Taxes
In connection with the Internal Revenue Service (the "IRS") examination of
the Company's 1993 and 1992 federal income tax returns, the IRS disallowed
certain previously reserved deductions taken by the Company in its 1993 tax
return. In 1998, the Company was informed that its appeal of the IRS decision to
disallow these deductions had been resolved in favor of the Company. As a result
of this favorable ruling, the Company reduced its deferred tax liability and
recognized an income tax benefit in 1998 totaling $7.5 million related to these
deductions. The decrease in the deferred tax liability increased basic and
diluted earnings per share in 1998 by $.59 per share and $.54 per share,
respectively.
16
<PAGE> 18
FINANCIAL CONDITION AND LIQUIDITY
HOUSING
The Company is significantly affected by the cyclical nature of the
homebuilding industry, which is sensitive to fluctuations in economic activity
and interest rates and the level of consumer confidence. Sales of new homes are
also affected by market conditions for rental properties and by the condition of
the resale market for used homes, including foreclosed homes. For example, an
oversupply of resale units depresses prices and reduces the margins available on
sales of new homes. The sale of new homes and profitability from sales are
heavily influenced by the level and expected direction of interest rates.
Increases in interest rates tend to have a depressing effect on the market for
new homes in view of increased monthly mortgage costs to potential homebuyers.
The Company's most significant needs for capital resources are land and
finished lot purchases, land development and housing construction. The Company's
ability to generate cash adequate to meet these needs is principally achieved
from the sale of homes and the margins thereon, the utilization of Company-owned
lots and borrowings under its financing facilities, including its unsecured
revolving credit agreement (the "Credit Facility").
Access to quality land and lot locations is an integral part of the
Company's success. Typically, in order to secure the rights to quality locations
and provide sufficient lead-time for development, the Company must acquire land
rights well in advance of when orders for housing units are expected to occur.
Primarily in its affordable and move-up home communities, the Company attempts
to minimize its exposure to the cyclical nature of the housing market and its
use of working capital by employing rolling lot options, which enable the
Company to initially pay a small portion of the total lot cost and then purchase
the lots on a scheduled basis. However, with the increase in the number of
retirement and active adult communities, the use of rolling lot options as a
percentage of the Company's total finished lot needs has and is expected to
continue to decrease since the majority of the finished lots for these
communities are developed on land owned by the Company. In 1999, 1998 and 1997,
respectively, 31%, 36% and 37%, of the units delivered have been on lots
acquired under rolling lot option agreements. The retirement and active adult
communities are generally long-term projects and require greater investments by
the Company than are required for its affordable and move-up home communities.
These communities generally include more units than the affordable and move-up
communities and generally have more extensive amenities, including golf courses
and clubhouses, which require substantial capital investment. The increases in
land inventories in 1999 from 1998 and in 1998 from 1997 were primarily the
result of increased activities, including an increase in the Company's
retirement and active adult communities' activities.
The Company has financed, and expects to continue to finance, its working
capital needs from operations and borrowings, including those made under the
Credit Facility. The Credit Facility (and previous credit facilities) have
enabled the Company to meet peak operating needs. In August 1997, the Company
entered into an interest rate swap agreement which has effectively fixed the
interest rate on $50 million of its Credit Facility borrowings until August
2000. See Note 3 of Notes to Consolidated Financial Statements.
In February 1999, the Company sold $125 million principal amount of its
8.875% senior subordinated notes due 2009 (the "2009 Senior Subordinated
Notes"). The net proceeds were used to repay part of the balance outstanding
under the Credit Facility and for general corporate purposes. See Note 3 of
Notes to Consolidated Financial Statements.
In April 1999, the Company acquired Lundgren Bros. Construction, Inc.
("Lundgren"), a privately held homebuilder in the Minneapolis/St. Paul area.
This acquisition was consistent with the Company's strategic objective of
enhancing its leadership position in each of its existing markets through value
and price point diversification. The acquisition significantly expanded the
Company's product offering in the Minneapolis/St. Paul area. Lundgren offers
customers luxury homes in neighborhoods developed for the more affluent
homeowner.
17
<PAGE> 19
Certain properties owned or under option by the Company may be located
within community development districts ("Districts") formed by municipalities to
construct and finance certain infrastructure/improvements on property in the
Districts' area. The Districts utilize ad valorem and assessment revenue bonds
to fund improvements and repay the bonds by annual tax assessments on District
property based on the property's relative value to other District property. The
Company provides no credit support for and is not liable for the debt of the
Districts, except to the extent of actual assessments made by the Districts. The
Company may utilize Districts to a greater extent in the future. However, there
can be no assurance that it will do so.
The net cash provided or used by the operating, investing and financing
activities of the housing operations for the years ended December 31, 1999, 1998
and 1997 is summarized below:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1999 1998 1997
-------- --------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Net cash provided (used) by:
Operating activities.............................. $(59,410) $(136,419) $(44,622)
Investing activities.............................. (7,500) (11,187) (2,493)
Financing activities.............................. 30,602 143,669 41,068
-------- --------- --------
Net decrease in cash................................ $(36,308) $ (3,937) $ (6,047)
======== ========= ========
</TABLE>
Housing operations are, at any time, affected by a number of factors,
including the number of housing units under construction and housing units
delivered. Housing operating activities for 1999 used less cash than 1998
primarily due to increased profitability and accelerated collection of closing
proceeds at year-end. Housing operating activities for 1998 used more cash than
1997 primarily due to an increase in construction and land asset activities,
offset in part by increased profitability and the timing of payments related to
these activities.
Cash flow from housing financing activities for 1999 provided cash
reflecting the sale of the Company's 2009 Senior Subordinated Notes and net
borrowings under the Credit Facility, offset by the repayment of notes and
mortgages and the repurchase of shares of the Company's common stock. Cash flow
from housing financing activities for 1998 provided cash reflecting the sale of
the Company's 7.75% senior notes due 2005, proceeds received from the exercise
of the Company's Class B warrants and net borrowings under the Credit Facility,
offset by the redemption and purchases of the Company's 9.75% senior notes due
2003 and the repurchase of shares of the Company's common stock.
The Company believes that cash flow from operations and amounts available
under the Credit Facility will be sufficient to meet its current working capital
obligations and other needs. However, should the Company require capital in
excess of that which is currently available, there can be no assurance that it
will be available.
FINANCIAL SERVICES
Mortgage's activities represent a substantial portion of the financial
services activities. As loan originations by Mortgage are primarily from homes
sold by the Company's home building operations, Mortgage's financial condition
and liquidity are to a significant extent dependent upon the financial condition
of the Company.
Financial services operating activities are affected primarily by the
volume of Mortgage's loan originations and the timing of the sale of mortgage
loans and related servicing rights to third party investors. Loans and servicing
rights are generally sold to investors within 30 days after homes are delivered.
Cash flow from financial services operating activities for 1999 used $16.3
million compared to providing $10.2 million in 1998 primarily due to Mortgage
accelerating the funding of originations in 1999. Cash flow from financial
services operating activities for 1998 provided more cash compared to 1997
primarily due to increased profitability and the timing of payments related to
Mortgage's origination activities.
18
<PAGE> 20
The Company finances its financial services operations primarily from a
credit facility which is repaid with internally generated funds, such as from
the origination and sale of residential mortgage loans and related servicing
rights. As more fully discussed in Note 3 of Notes to Consolidated Financial
Statements, the credit facility consists of an $80 million secured revolving
line of credit (the "Mortgage Credit Facility") which matures on September 30,
2001. While the Mortgage Credit Facility contains numerous covenants, including
a debt to tangible net worth ratio and a minimum tangible net worth requirement,
these covenants are not anticipated to significantly limit Mortgage's
operations.
The Company has no obligation to provide funding to its financial services
operations, nor does it guarantee any of its financial services subsidiaries'
debt. The Company believes that internally generated funds and the Mortgage
Credit Facility will be sufficient to provide for Mortgage's working capital
needs.
OTHER
Subsequent Event
In February 2000, Lennar entered into a definitive agreement to acquire the
Company through a merger in which U.S. Home stockholders will receive a total of
approximately $476 million, of which approximately one-half will be in cash and
the remainder will be in common stock of Lennar (with the common stock portion,
and therefore the total purchase price, subject to adjustment if the price of
Lennar's stock is greater or lower than specified levels) in exchange for their
stock. U.S. Home will become a wholly-owned subsidiary of Lennar. At the time
the acquisition takes place, the Company's debt is expected to include bank debt
and approximately $525 million of publicly-held debt. The holders of the
publicly-held debt have the right to require U.S. Home to redeem such debt
within 90 days of the completion of the transaction, and the lenders under the
Company's Credit Facility can accelerate the debt outstanding thereunder. In
addition, the bank debt of certain of the Company's subsidiaries may become due
upon consummation of the merger. Lennar has informed the Company that it has
access to the resources required to close the transaction and, if necessary,
refinance U.S. Home's debt. The transaction is subject to approval by the
stockholders of both companies, as well as expiration or termination of any
applicable waiting periods under antitrust laws and other regulatory matters and
other customary closing conditions. If the necessary stockholder and regulatory
approvals are obtained and the other closing conditions are satisfied, the
Company expects the transaction to close by the end of May 2000.
Lennar has informed the Company that Lennar will account for the proposed
acquisition using the purchase method of accounting, which requires an
allocation of the purchase price to the assets acquired and liabilities assumed.
The Company's consolidated financial statements have been prepared on the
historical cost basis of accounting in accordance with generally accepted
accounting principles. The Company's historical cost basis of its net assets
(total shareholders' equity) is greater than the current estimated purchase
price.
Impact of Inflation
Inflation not only affects interest rates on funds borrowed by the Company,
but also affects the affordability of permanent mortgage financing available to
prospective customers. Increased construction costs associated with rising
interest rates, as well as increased material costs, compress gross margins in
the short-term, but may be recovered in the long-term through increases in sales
prices, although such increases may reduce sales volume. In recent years,
inflation has not had a significant adverse effect on the Company.
Cautionary Disclosure Regarding Forward-Looking Statements
The Company includes this disclosure to take advantage of the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995.
Certain statements contained herein, in the Company's press releases, oral
communications and other filings with the Securities and Exchange Commission
include "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of
19
<PAGE> 21
1934. Forward-looking statements may be identified by the use of words like
"believes," "intends," "expects," "may," "will," "should" or "anticipates," or
the negative equivalents of those words or comparable terminology, and by
discussions of strategies that involve risks and uncertainties.
Given the risks, uncertainties and contingencies of the Company's business,
actual results may differ materially from those expressed or implied by
forward-looking statements. In addition, the Company bases forward-looking
statements on assumptions about future events which may not prove to be
accurate. In light of these risks, uncertainties, and assumptions,
forward-looking events described herein, in the Company's press releases, in
oral communication and in other filings with the Securities and Exchange
Commission may not occur.
Forward-looking statements by the Company regarding results of operations
and financial condition are subject to risks, uncertainties and assumptions,
including the following:
- General economic and business conditions, the level and direction of
interest rates and the level of consumer confidence have a significant
impact on the willingness and ability of purchasers to enter into
contracts for homes and to consummate purchases of homes under contract
as well as on the performance of Mortgage, the Company's principal
subsidiary.
- The development of many of the Company's communities, particularly its
retirement, active adult and intergenerational communities, results from
a lengthy, complex series of events involving land purchase, regulatory
compliance, capital availability, and marketing and sales, any of which
can materially affect the financial results for a community.
- The Company is in a highly competitive and fragmented industry. This
places constant pressure on the Company's pricing (including the
Company's ability to respond to increases in prices from its suppliers),
quality and marketing and particularly challenges the Company upon its
entry into new geographic markets.
- The Company faces numerous regulatory hurdles in its development efforts,
such as laws and regulations regarding zoning, environmental protection,
building design and construction, density and rate of development.
- The Company's access to capital sufficient to fund its activities is
affected by the Company's high level of debt and by the willingness of
the capital markets and banks to absorb equity or debt offerings.
- The Company may encounter other contingencies, including labor shortages,
work stoppages, product liability, litigation, natural risks (including
floods or hurricanes) and other factors over which the Company has little
or no control.
The Company cannot assure that its future results, levels of activity and
achievements will occur as it expects, and neither the Company nor any other
person assumes responsibility for the accuracy and completeness of its
forward-looking statements. The Company has no obligation to update or revise
any forward-looking statement, whether as a result of new information, future
events or otherwise.
20
<PAGE> 22
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is subject to interest rate risk on its variable rate Credit
Facility. From time to time the Company hedges its exposure to changes in
interest rates on its variable rate debt under the Credit Facility by entering
into interest rate swap agreements to lock in a fixed rate for a portion of this
debt. The Company's publicly held debt and notes and mortgages payable are at
fixed interest rates. In connection with Mortgage's operations, mortgage loans
held for sale, estimated future commitment to originate and close loans at a
fixed price and the associated Mortgage Credit Facility are subject to interest
rate risk. The Company manages this interest rate risk through hedging
techniques by regularly entering into either fixed price mandatory forward
delivery contracts to sell mortgage-backed securities to security dealers or
fixed price forward delivery commitments to sell specific whole loans to
investors on mandatory or best efforts basis. All of Mortgage's obligations are
short-term in duration and repriced frequently. Accordingly, the Company does
not believe that the risks associated with Mortgage's financing activities are
material.
The following table sets forth as of December 31, 1999, the Credit
Facility, the Mortgage Credit Facility, the Subsidiary Credit Agreement,
long-term debt obligations, principal cash flow by scheduled maturity, weighted
average interest rates and estimated fair value. In addition, the table includes
the notional amount and interest rates of the Company's interest rate swap which
expires in August 2000.
<TABLE>
<CAPTION>
ESTIMATED
FAIR VALUE
AMOUNT BY SCHEDULED MATURITY FOR YEAR ENDED DECEMBER 31, AT
---------------------------------------------------------------------- DECEMBER 31,
2000 2001 2002 2003 2004 THEREAFTER TOTAL 1999
------- ------- ------- ----- -------- ---------- -------- ------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Variable Rate Debt --
Amount........................ $ -- $83,485 $97,000 $ -- $ -- $ -- $180,485
Average interest rate......... --% 6.5% 8.5% --% --% --% 7.6%
Fixed Rate Debt --
Amount........................ $ 7,359 $81,244 $12,322 $ 44 $100,038 $352,082 $553,089 $ --(i)
Average interest rate......... 8.84% 8.00% 7.94% 8.50% 8.25% 8.55% 8.41%
Interest Rate Swap --
Variable to fixed............. $50,000 $ -- $ -- $ -- $ -- $ -- $ 50,000 $ (30)
Average pay rate.............. 6.29% --% --% --% --% --% 6.29%
Average receive rate.......... 90 day LIBOR
</TABLE>
- ---------------
(i) The fair value of the Company's senior and senior subordinated notes cannot
be determined as none of these instruments are actively traded on the open
market. The Company has been informed that its senior notes and senior
subordinated notes are currently trading at discounts to their face amount;
however, their estimated fair value cannot be accurately determined because
of the limited activity.
21
<PAGE> 23
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
U.S. HOME CORPORATION AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Financial Statements:
Report of Independent Public Accountants.................... 23
Consolidated Balance Sheets -- December 31, 1999 and 1998... 24
Consolidated Statements of Operations -- For the Year Ended
December 31, 1999, 1998 and 1997.......................... 25
Consolidated Statements of Stockholders' Equity -- For the
Year Ended December 31, 1999, 1998 and 1997............... 26
Consolidated Statements of Cash Flows -- For the Year Ended
December 31, 1999, 1998 and 1997.......................... 27
Notes to Consolidated Financial Statements.................. 28
</TABLE>
22
<PAGE> 24
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To U.S. Home Corporation:
We have audited the accompanying consolidated balance sheets of U.S. Home
Corporation (a Delaware corporation) and subsidiaries as of December 31, 1999
and 1998, and the related consolidated statements of operations, stockholders'
equity and cash flows for each of the three years in the period ended December
31, 1999. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
U.S. Home Corporation and subsidiaries as of December 31, 1999 and 1998, and the
consolidated results of their operations and cash flows for each of the three
years in the period ended December 31, 1999, in conformity with generally
accepted accounting principles.
/s/ ARTHUR ANDERSEN LLP
------------------------------------
ARTHUR ANDERSEN LLP
Houston, Texas
January 31, 2000 (except with
respect to the matters discussed
in Note 13 as to which the date is
February 16, 2000)
23
<PAGE> 25
U.S. HOME CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1999 AND 1998
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
1999 1998
---------- ----------
<S> <C> <C>
Housing:
Cash (including restricted funds of $4,269 and $3,626).... $ 6,170 $ 8,172
Receivables, net.......................................... 30,329 60,510
Single-Family Housing Inventories......................... 1,245,375 986,878
Option Deposits on Real Estate............................ 103,213 103,451
Other Assets.............................................. 79,901 59,636
---------- ----------
1,464,988 1,218,647
---------- ----------
Financial Services:
Cash (including restricted funds of $3,752 and $3,524).... 6,596 5,660
Residential Mortgage Loans................................ 78,675 82,479
Other Assets.............................................. 22,732 8,987
---------- ----------
108,003 97,126
---------- ----------
Corporate:
Cash and Other Assets..................................... 29,649 37,203
---------- ----------
$1,602,640 $1,352,976
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Corporate and Housing:
Accounts Payable.......................................... $ 160,329 $ 129,200
Accrued Expenses and Other Current Liabilities............ 117,411 89,156
Revolving Credit Facility................................. 97,000 130,000
Long-Term Debt............................................ 553,089 424,980
---------- ----------
927,829 773,336
---------- ----------
Financial Services:
Accrued Expenses and Other Current Liabilities............ 12,677 32,287
Revolving Credit Facility................................. 83,485 33,112
---------- ----------
96,162 65,399
---------- ----------
Total Liabilities......................................... 1,023,991 838,735
---------- ----------
Stockholders' Equity:
Common Stock, 13,289,088 and 13,501,630 shares outstanding
at December 31, 1999 and 1998.......................... 137 137
Capital in Excess of Par Value............................ 403,467 402,754
Retained Earnings......................................... 190,456 118,061
Unearned Compensation on Restricted Stock................. (3,643) (1,475)
---------- ----------
590,417 519,477
---------- ----------
Less Treasury Stock, at cost, 387,542 and 175,000 shares
of common stock at December 31, 1999 and 1998.......... (11,768) (5,236)
---------- ----------
Total Stockholders' Equity................................ 578,649 514,241
---------- ----------
$1,602,640 $1,352,976
========== ==========
</TABLE>
The accompanying notes are an integral part of these balance sheets.
24
<PAGE> 26
U.S. HOME CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1999, 1998 AND 1997
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
1999 1998 1997
---------- ---------- ----------
<S> <C> <C> <C>
Housing:
Operating Revenues..................................... $1,785,987 $1,464,072 $1,294,100
Operating Costs and Expenses --
Cost of products sold............................... 1,452,043 1,192,791 1,059,571
Selling, general and administrative................. 174,592 140,904 123,300
Interest............................................ 45,490 40,787 33,789
---------- ---------- ----------
1,672,125 1,374,482 1,216,660
---------- ---------- ----------
Housing Operating Income............................... 113,862 89,590 77,440
---------- ---------- ----------
Financial Services:
Operating Revenues..................................... 38,469 33,577 25,652
General, Administrative and Other Expenses............. 22,297 20,824 16,485
---------- ---------- ----------
Financial Services Operating Income.................... 16,172 12,753 9,167
---------- ---------- ----------
Corporate General and Administrative..................... 14,202 13,050 11,707
---------- ---------- ----------
Income Before Income Taxes and Extraordinary Loss........ 115,832 89,293 74,900
---------- ---------- ----------
Provision for Income Taxes:
Federal and State Income Taxes......................... 43,437 33,038 27,713
Tax Benefit............................................ -- (7,474) --
---------- ---------- ----------
43,437 25,564 27,713
---------- ---------- ----------
Income Before Extraordinary Loss......................... 72,395 63,729 47,187
Extraordinary Loss from Early Retirement of Debt, Net of
Income Tax Benefit..................................... -- 3,026 8,650
---------- ---------- ----------
Net Income............................................... $ 72,395 $ 60,703 $ 38,537
========== ========== ==========
Basic Earnings Per Share:
Income Before Extraordinary Loss....................... $ 5.41 $ 4.99 $ 4.08
Extraordinary Loss..................................... $ -- $ (.24) $ (.75)
Net Income............................................. $ 5.41 $ 4.75 $ 3.33
Diluted Earnings Per Share:
Income Before Extraordinary Loss....................... $ 5.30 $ 4.68 $ 3.50
Extraordinary Loss..................................... $ -- $ (.22) $ (.62)
Net Income............................................. $ 5.30 $ 4.46 $ 2.88
</TABLE>
The accompanying notes are an integral part of these statements.
25
<PAGE> 27
U.S. HOME CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEAR ENDED DECEMBER 31, 1999, 1998 AND 1997
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
UNEARNED
CONVERTIBLE CAPITAL IN COMPENSATION
COMMON PREFERRED EXCESS OF ON RESTRICTED RETAINED TREASURY
STOCK STOCK PAR VALUE STOCK EARNINGS STOCK
------ ----------- ---------- ------------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1996........... $114 $ 2,947 $ 353,830 $(2,022) $ 18,821 $ --
Conversion of convertible redeemable
preferred stock to common stock
(106,501 shares)..................... 1 (2,663) 2,662 -- -- --
Redemption of convertible redeemable
preferred stock (11,352 shares)...... -- (284) -- -- -- --
Conversion of 4.875% convertible
subordinated debentures to common
stock (302,866 shares)............... 3 -- 10,659 -- -- --
Purchase of common stock (157,743
shares).............................. -- -- -- -- -- (4,206)
Other.................................. 1 -- 1,126 252 -- --
Net income for year.................... -- -- -- -- 38,537 --
---- ------- ---------- ------- -------- --------
BALANCE AT DECEMBER 31, 1997........... 119 -- 368,277 (1,770) 57,358 (4,206)
Stock issued on exercise of Class B
warrants (1,837,941 shares).......... 18 -- 34,170 -- -- 2,571
Stock issued under stock plans (48,051
shares).............................. -- -- 387 -- -- 862
Purchase of common stock (175,000
shares).............................. -- -- -- -- -- (5,236)
Other.................................. -- -- (80) 295 -- 773
Net income for year.................... -- -- -- -- 60,703 --
---- ------- ---------- ------- -------- --------
BALANCE AT DECEMBER 31, 1998........... 137 -- 402,754 (1,475) 118,061 (5,236)
Stock issued under stock plans (122,058
shares).............................. -- -- 713 (4,174) -- 3,980
Purchase of common stock (334,600
shares).............................. -- -- -- -- -- (10,512)
Other.................................. -- -- -- 2,006 -- --
Net income for year.................... -- -- -- -- 72,395 --
---- ------- ---------- ------- -------- --------
BALANCE AT DECEMBER 31, 1999........... $137 $ -- $ 403,467 $(3,643) $190,456 $(11,768)
==== ======= ========== ======= ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
26
<PAGE> 28
U.S. HOME CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1999, 1998 AND 1997
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Cash Flows From Operating Activities:
Net income.............................................. $ 72,395 $ 60,703 $ 38,537
Adjustments to reconcile net income to net cash provided
(used) by operating activities --
Extraordinary loss................................... -- 3,026 8,650
Provision for deferred income taxes.................. 1,510 4,457 2,151
Tax benefit.......................................... -- (7,474) --
Other, net (principally depreciation and
amortization)...................................... 15,967 12,556 10,205
Changes in assets and liabilities --
Increase (decrease) in receivables................. 19,611 (32,974) (20,229)
Increase in inventories............................ (212,000) (186,884) (68,691)
Increase in other assets........................... (13) (54,275) (29,809)
Increase in accounts payable and accrued
liabilities..................................... 26,738 74,536 17,618
--------- --------- ---------
Net cash used by operating Activities........... (75,792) (126,329) (41,568)
--------- --------- ---------
Cash Flows From Investing Activities:
Purchase of property, plant and equipment, net of
disposals............................................ (7,292) (9,989) (3,056)
(Increase) in restricted cash........................... (871) (1,854) (185)
Principal collections on investments in mortgage
loans................................................ 2,608 3,882 4,136
Other................................................... (814) (1,329) (106)
--------- --------- ---------
Net cash provided (used) by investing
Activities.................................... (6,369) (9,290) 789
--------- --------- ---------
Cash Flows From Financing Activities:
Proceeds from revolving credit facilities, net of
repayments........................................... 17,373 93,769 26,929
Net proceeds from sale of senior and senior subordinated
notes................................................ 122,113 98,237 220,937
Proceeds from exercise of Class B warrants.............. -- 36,759 110
Purchase of senior notes and convertible subordinated
debentures........................................... -- (82,980) (198,831)
Repayment of notes and mortgages payable................ (48,021) (4,675) (6,128)
Repurchase of common stock and Class B
Warrants................................................ (10,512) (5,236) (4,266)
Other................................................... 22 564 356
--------- --------- ---------
Net cash provided by financing Activities....... 80,975 136,438 39,107
--------- --------- ---------
Net Increase (Decrease) In Cash........................... (1,186) 819 (1,672)
Cash At Beginning Of Year................................. 7,285 6,466 8,138
--------- --------- ---------
Cash At End Of Year....................................... $ 6,099 $ 7,285 $ 6,466
========= ========= =========
Supplemental Disclosure:
Interest paid, before amount capitalized --
Housing.............................................. $ 55,906 $ 42,066 $ 32,063
Financial Services................................... 1,387 1,682 1,426
--------- --------- ---------
$ 57,293 $ 43,748 $ 33,489
========= ========= =========
Income taxes paid....................................... $ 38,529 $ 20,945 $ 21,490
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
27
<PAGE> 29
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(1) BASIS OF PRESENTATION AND SEGMENT INFORMATION
Basis of Presentation
The accompanying consolidated financial statements include the accounts of
the Company and all wholly-owned subsidiaries after elimination of all
significant intercompany balances and transactions. The Company accounts for
investments in unconsolidated joint ventures in which the Company's interest is
50% or less by the equity method of accounting.
Segment Information
The Company's financial reporting segments consist of home building,
financial services and corporate. The Company's home building operations
comprise the most substantial part of its business, with approximately 98% of
consolidated revenues in 1999, 1998 and 1997 contributed by the home building
operations. The Company is one of the largest single-family homebuilders in the
United States based on homes delivered. The Company currently builds and sells
homes in more than 240 new home communities in 33 market areas in 13 states. The
Company offers a wide variety of moderately-priced homes that are designed to
appeal to the affordable, move-up and retirement and active adult buyers. The
Company's financial services operations provide mortgage-banking services to the
home building operations' customers. The Company originates, processes and sells
mortgages to third-party investors. The Company does not retain or service the
mortgages that it originates but, rather, sells the mortgages and related
servicing rights to investors. Corporate primarily includes the operations of
the Company's corporate office whose primary purpose is to provide financing,
cash management, risk management, capital allocations, management reporting and
general administration of the home building and financial services segments.
The accounting policies of the reportable segments are described in Note 2.
Assets, operating revenues and operating income of the Company's reportable
segments are included in the consolidated balance sheets and consolidated
statements of operations. Expenditures for long-lived assets and depreciation
and amortization expenses for the years ended December 31, 1999, 1998 and 1997
were insignificant.
(2) SIGNIFICANT ACCOUNTING POLICIES
GENERAL
Use of Estimates
The preparation of consolidated financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of any contingent assets and liabilities at the date of the
consolidated financial statements and revenues and expenses during the reporting
period. Management's estimates and assumptions are reflective of, among other
things, prevailing and expected market conditions, current operating strategies
and the availability of capital which are all subject to change. Changes to the
aforementioned or other conditions could in turn cause changes to such estimates
and assumptions and, as a result, actual results could differ from the original
estimates.
Cash Equivalents
The Company considers all short-term investments with an initial maturity
of less than 90 days to be cash equivalents.
28
<PAGE> 30
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Financial Instruments
The Company believes that fair value approximates recorded values for such
financial instruments as cash and cash equivalents, trade receivables and
payables, short-term debt and option deposits because of the typically liquid,
short-term nature, market rate terms and lack of specific concentration of these
instruments.
The fair value of the senior and senior subordinated notes cannot be
determined as none of these instruments are actively traded on the open market.
The Company has been informed that two of the senior notes issues are currently
trading at a nominal premium and one senior note issue and the senior
subordinated notes are currently trading at a nominal discount; however, the
amount of the premium or discount cannot be determined because of the limited
activity.
The fair value of the Company's residential mortgage loans approximate
their carrying value as such loans are packaged and sold to investors generally
within 30 days after home delivery. Additionally, a significant portion of the
Company's interest rate risk associated with and generated by these loans is
mitigated by the use of forward delivery contracts and commitments. See Hedging
Contracts below.
Hedging Contracts
From time to time, the Company may utilize interest rate swap agreements to
manage interest costs and hedge against risks associated with changing interest
rates. The Company designates interest rate swaps as hedges of specific debt
instruments and recognizes interest rate differentials as adjustments to
interest paid or accrued as the differentials occur. Counterparties to these
agreements are major financial institutions. The Company believes that the
likelihood of credit loss from counterparty non-performance is remote. At
December 31, 1999, the Company had an interest rate swap agreement outstanding
with a notional amount of $50,000 which will mature in 2000 and effectively
fixed the interest rate on a portion of its revolving credit facility
borrowings. See Note 9.
The Company manages its interest rate market risk on the inventory loans
held for sale and its estimated future commitments to originate and close
mortgage loans at fixed prices ("Loan Quotes") through hedging techniques by
regularly entering into either fixed price mandatory forward delivery contracts
("Forward Contracts") to sell mortgage-backed securities to security dealers or
fixed price forward delivery commitments ("Forward Commitments") to sell
specific whole loans to investors on a mandatory or best efforts basis ("Forward
Contracts" and "Forward Commitments", collectively "Hedging Contracts"). The
Company records the inventory of residential mortgage loans at the lower of cost
or market on an aggregate basis after considering any market value changes in
the inventory loans, Loan Quotes and Hedging Contracts. See Note 9.
HOUSING
Sales and Profit Recognition
Profit is recognized from the sale of real estate at time of closing, i.e.,
when sufficient down payment has been made; any financing has been arranged;
title, possession and other attributes of ownership have been transferred to the
buyer; and the Company is not obligated to perform additional significant
activities after the sale.
29
<PAGE> 31
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Inventories and Valuation
The components of single-family housing inventories are as follows:
<TABLE>
<CAPTION>
1999 1998
---------- --------
<S> <C> <C>
Housing completed and under construction.................... $ 463,563 $382,080
Models...................................................... 102,512 90,676
Finished lots............................................... 209,827 132,567
Land under development...................................... 328,683 250,039
Land held for development or sale........................... 140,790 131,516
---------- --------
$1,245,375 $986,878
========== ========
</TABLE>
The cost of acquiring and developing land and constructing certain
amenities are allocated to the related parcels. Housing inventories are recorded
using the specific identification method. The Company reviews land under
development and to be developed whenever events or changes in circumstances
indicate that the carrying amount of a property may not be recoverable. The
Company recognizes an impairment loss only if the sum of expected future cash
flows (undiscounted and without interest charges) is less than the carrying
amount of the property. The Company measures any impairment loss on land under
development and to be developed by the amount the carrying amount of the
property exceeds fair value. The Company carries land substantially completed
and ready for its intended use, land held for sale and housing inventories at
the lower of cost or fair value less cost to sell. Fair value is the amount at
which a property could be bought or sold in a current transaction between
willing parties. The Company monitors the valuation of its land and housing
inventories on a continuous basis with a detailed review each year in
conjunction with the completion of the following year's business plan.
Provisions to reduce land and housing inventories to the lower of cost or fair
value in 1999, 1998, and 1997 were not significant. Total land and housing
reserves were $17,966, $23,894 and $35,839 at December 31, 1999, 1998 and 1997,
respectively.
During 1999, 1998 and 1997, the Company purchased land in several
transactions of which $11,717, $13,667 and $14,456, respectively, were seller
financed. These transactions were treated as non-cash transactions for purposes
of the consolidated statements of cash flows.
Interest Capitalization
Interest is capitalized on land, finished building lots and single-family
residential housing construction costs during the development and construction
period. Interest is capitalized to eligible assets using an allocation method
based on the Company's actual interest costs. A summary of interest for the
three years ended December 31, 1999, follows:
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Capitalized at beginning of year..................... $ 68,750 $ 62,950 $ 58,566
Capitalized.......................................... 60,459 46,597 38,153
Previously capitalized interest included in interest
expense............................................ (45,490) (40,787) (33,789)
Other................................................ 1,159 (10) 20
-------- -------- --------
Capitalized at end of year........................... $ 84,878 $ 68,750 $ 62,950
======== ======== ========
</TABLE>
FINANCIAL SERVICES
Revenue Recognition
The sale of loans and loan servicing rights is recognized when the closed
loans are sold and delivered to an investor. During the years ended December 31,
1999, 1998 and 1997, revenues included net losses from the sale of loans of
$746, $525 and $573, respectively, and net gains from the sale of servicing of
$15,654, $14,122 and $9,691, respectively.
30
<PAGE> 32
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Interest Income
Interest income relating to financial services for the years ended December
31, 1999, 1998 and 1997 was $6,247, $5,442 and $4,785, respectively, and is
included in "Financial Services -- Operating Revenues" in the accompanying
consolidated statements of operations.
Interest Expense
Interest expense relating to financial services for the years ended
December 31, 1999, 1998 and 1997 was $1,385, $1,691 and $1,417, respectively,
and is included in "Financial Services -- General, Administrative and Other
Expenses" in the accompanying consolidated statements of operations.
Residential Mortgage Loans
Residential mortgage loans held for sale ($78,675 at December 31, 1999) are
included in the accompanying consolidated balance sheets at the lower of cost or
market on an aggregate basis. The Company estimates the fair value of
residential mortgage loans held at December 31, 1999 and 1998 approximated
recorded value based on quoted market prices for similar loans sold either on a
whole loan basis or pooled and sold as collateral for mortgage-backed
securities.
(3) REVOLVING CREDIT FACILITIES AND LONG-TERM DEBT
Housing
The housing Revolving Credit Facility and long-term debt consist of the
following:
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Revolving Credit Facility................................... $ 97,000 $130,000
-------- --------
7.95% Senior Notes due 2001................................. 75,000 75,000
8.25% Senior Notes due 2004................................. 100,000 100,000
7.75% Senior Notes due 2005................................. 99,811 99,773
8.88% Senior Subordinated Notes due 2007.................... 125,000 125,000
8.875% Senior Subordinated Notes due 2009................... 124,076 --
Notes and mortgage notes payable............................ 29,202 25,207
-------- --------
553,089 424,980
-------- --------
$650,089 $554,980
======== ========
</TABLE>
The Company has an unsecured revolving credit agreement (the "Credit
Facility") with a group of banks. The Credit Facility provides for borrowings of
up to $300,000, of which up to $35,000 may be used for letter of credit
obligations, subject to a borrowing base limitation. Upon approval of the agent
bank, the borrowings under the Credit Facility may be increased, in multiples of
$10,000, to a maximum of $350,000, either by having additional banks (which have
been approved by the Company) become lenders or by having one or more of the
existing banks, with the approval of the Company, increase the amount of their
commitment. The amount available for borrowing under the Credit Facility is
based on housing inventories, land, finished lots and closing proceeds
receivables less outstanding senior debt borrowings (as defined), including
amounts outstanding under the Credit Facility; as the amount invested in these
categories changes, the amount of available borrowings will increase or
decrease. At December 31, 1999, $189,394 of the Credit Facility commitment was
available for borrowing. Borrowings bear interest at a premium over the London
Interbank Offered Rate ("LIBOR") or the base rate announced by the agent bank.
The Credit Facility, as amended, expires on May 31, 2002, but may be extended
annually for successive one-year periods with the consent of the banks and
contains numerous real estate and financial covenants, including restrictions on
the
31
<PAGE> 33
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
incurrence of additional debt, creation of liens and the levels of land and
housing inventories maintained by the Company and limits the payment of cash
dividends in any fiscal quarter to fifty percent of the Company's consolidated
net income (as defined in the Credit Facility) for the preceding fiscal quarter.
In 1999, the Company completed the sale of $125,000 principal amount of its
8.875% senior subordinated notes due 2009 (the "2009 Senior Subordinated
Notes"). The net proceeds were used to repay part of the balance outstanding
under the Credit Facility and for general corporate purposes. The 2009 Senior
Subordinated Notes were issued at original issue discount of $1,012, which is
being amortized over the term of such Notes. Interest is payable semi-annually
on February 15 and August 15. On or after February 15, 2004, the 2009 Senior
Subordinated Notes may be redeemed at the option of the Company, in whole or in
part, at prices ranging from 104.438% during the 12 month period beginning
February 15, 2004 to 100% (on or after February 15, 2007) of the principal
amount thereof, together with accrued and unpaid interest.
In 1998, the Company redeemed $43,109 principal amount of its 9.75% Senior
Notes due 2003 (the "2003 Senior Notes") and purchased in open market
transactions $36,594 principal amount of the 2003 Senior Notes. The early
retirement of the 2003 Senior Notes resulted in an extraordinary loss in 1998 of
$3,026, net of income tax benefit of $1,777.
In 1997, the Company purchased $110,480 principal amount of the 2003 Senior
Notes pursuant to a tender offer and, subsequent to the expiration of the tender
offer, purchased in an open market transaction $9,817 principal amount of the
2003 Senior Notes. Also in 1997, the Company redeemed $69,248 principal amount
of its 4.875% convertible subordinated debentures (the "Debentures"), and
$10,752 principal amount of the Debentures were converted, prior to the
redemption date in 1997, into 302,866 shares of the Company's common stock. The
early retirement of the 2003 Senior Notes and redemption of the Debentures
resulted in an extraordinary loss in 1997 of $8,650, net of income tax benefit
of $5,080.
The 2005 Senior Notes were issued at original issue discount of $263, which
is being amortized over the term of the notes. The 7.95% senior notes are due
March 1, 2001, the 8.25% senior notes are due August 15, 2004, the 7.75% senior
notes are due January 15, 2005 (the "2005 Senior Notes") and the 8.88% senior
subordinated notes are due August 15, 2007 (the "2007 Senior Subordinated
Notes"). Interest is payable semi-annually. On or after January 15, 2003, the
2005 Senior Notes may be redeemed at the option of the Company, in whole or in
part, at prices ranging from 101.29% during the 12 month period beginning
January 15, 2003 to 100% (on or after January 15, 2004) of the principal amount
thereof, together with accrued and unpaid interest. On or after August 15, 2002,
the 2007 Senior Subordinated Notes may be redeemed at the option of the Company,
in whole or in part, at prices ranging from 104.44% (during the 12 month period
beginning August 15, 2002) to 100% (on or after August 15, 2005) of the
principal amount thereof, together with accrued and unpaid interest. The
indentures relating to the senior notes and the senior subordinated notes
contain numerous covenants, including a minimum tangible net worth requirement
and a limitation on the incurrence of additional debt.
Housing notes and mortgage notes payable are primarily for the acquisition
and development of land, with interest rates ranging from 8.0% to 10.0%. Assets
pledged as collateral under these agreements totaled approximately $50,373 at
December 31, 1999.
Upon a change of control of the Company, holders of the senior notes and
the senior subordinated notes will have the right to require the Company to
redeem the notes at a price of 101% of the principal amount of the notes,
together with accrued and unpaid interest. There can be no assurance that
sufficient funds will be available to make the required repurchases if a change
of control occurs. In addition, the Credit Facility prohibits the Company's
repurchase of any of its subordinated indebtedness and contains a limitation on
the Company's repurchase of its capital stock. At December 31, 1999, $51,595 was
available under the Credit Facility for the repurchase of capital stock.
Moreover, the occurrence of a change of control will trigger an event of default
under the Credit Facility.
32
<PAGE> 34
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The maximum amounts of borrowings from banks and other financial
institutions outstanding at any time during 1999, 1998 and 1997 were $238,000,
$185,000, and $81,000, respectively. The average amounts of debt outstanding
from banks and other financial institutions during 1999, 1998 and 1997 were
$167,100, $95,100, and $31,100, respectively, and the weighted average interest
rates, without giving effect to commitment fees, were 6.5%, 7.8%, and 7.8%,
respectively. Computations of the weighted average interest rates were based
upon the weighted average of outstanding loan balances during the respective
years.
At December 31, 1999, housing long-term debt matures as follows: $7,359 in
2000, $81,244 in 2001, $12,322 in 2002, $44 in 2003, $100,038 in 2004 and
$352,082 in 2005 and thereafter.
Financial Services
The financial services credit facilities consist of the following:
<TABLE>
<CAPTION>
1999 1998
------- -------
<S> <C> <C>
Mortgage Credit Facility.................................... $76,185 $33,112
Subsidiary Credit Agreement................................. 7,300 --
------- -------
$83,485 $33,112
======= =======
</TABLE>
The Company's mortgage banking subsidiary, U.S. Home Mortgage Corporation
("Mortgage") may borrow up to $80,000 under a revolving line of credit (the
"Mortgage Credit Facility"). The Mortgage Credit Facility is secured by
residential mortgage loans, is not guaranteed by the Company, matures on
September 30, 2001 and bears interest at a premium over the LIBOR rate. The
Mortgage Credit Facility has been in place since 1992 and has been renewed on
various terms and conditions on an annual basis.
In 1999, a subsidiary of Mortgage (the "Subsidiary") entered into an
unsecured revolving credit agreement (the "Subsidiary Credit Agreement") with
two banks providing up to a maximum of $10,000 of borrowings subject to a
borrowing base. The Subsidiary was organized to loan money to joint ventures in
which the Company is a joint venture partner. The Subsidiary Credit Agreement is
guaranteed by the Company and the joint venture partner, matures on May 31, 2001
and bears interest at a premium over the base rate announced by the agent bank
or a premium over the LIBOR rate.
The maximum amounts of financial services borrowings from banks and other
financial institutions outstanding at any time during 1999, 1998 and 1997 were
$83,485, $44,300, and $46,900, respectively. The average amounts of short-term
debt outstanding from banks and other financial institutions during 1999, 1998
and 1997 were $20,164, $25,200, and $20,500, respectively, and the weighted
average interest rates, without giving effect to commitment fees, were 6.5%,
6.5% and 6.7%, respectively. Computations of such rates were made based upon the
weighted average of outstanding loan balances during the respective years.
33
<PAGE> 35
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(4) INCOME TAXES
The Company and its subsidiaries file consolidated federal income tax
returns. The components of the provision for income taxes consisted of the
following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Current --
Federal............................................... $35,772 $18,043 $21,547
State................................................. 6,155 3,064 4,015
------- ------- -------
41,927 21,107 25,562
------- ------- -------
Deferred --
Federal............................................... 873 2,271 1,762
State................................................. 637 2,186 389
------- ------- -------
1,510 4,457 2,151
------- ------- -------
Total provision............................... $43,437 $25,564 $27,713
======= ======= =======
</TABLE>
Deferred income taxes are determined based upon the difference between the
financial reporting and tax basis of assets and liabilities. At December 31,
1999, the Company has recorded a net deferred tax liability of $8,332 which is
comprised of deferred tax assets of $25,767 (including $5,913 relating to
housing reserves which were expensed for financial reporting purposes but
deferred for federal income tax purposes) and deferred tax liabilities of
$34,099 (including $26,390 relating to interest expense capitalized for
financial reporting purposes but expensed for federal income tax purposes). At
December 31, 1998, deferred tax assets and deferred tax liabilities were $24,600
and $30,300, respectively, and were primarily attributable to the same items
noted above.
In connection with the Internal Revenue Service (the "IRS") examination of
the Company's 1993 and 1992 federal income tax returns, the IRS disallowed
certain previously reserved deductions taken by the Company in its 1993 tax
return. In 1998, the Company was informed that its appeal of the IRS decision to
disallow these deductions had been resolved in favor of the Company. As a result
of this favorable ruling, the Company reduced its deferred tax liability and
recognized an income tax benefit in 1998 totaling $7,474 related to these
deductions. The decrease in the deferred tax liability increased basic and
diluted earnings per share in 1998 by $.59 per share and $.54 per share,
respectively.
The following table reconciles the statutory federal income tax rate to the
effective income tax rate for:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1999 1998 1997
----- ----- -----
<S> <C> <C> <C>
Tax provision at statutory rate............................. 35.0% 35.0% 35.0%
Increases (decreases) in taxes resulting from --
State and local income taxes, net of Federal income tax
provision.............................................. 4.0 4.0 4.0
Tax benefit............................................... -- (8.4) --
Other, net................................................ (1.5) (2.0) (2.0)
---- ---- ----
Effective rate.............................................. 37.5% 28.6% 37.0%
==== ==== ====
</TABLE>
34
<PAGE> 36
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(5) STOCKHOLDERS' EQUITY
As of December 31, 1999, the Company's capital structure consisted of the
following:
Common Stock -- Authorized 50,000,000 shares, par value $.01 per share,
issued 13,676,630 shares and outstanding 13,289,088 shares. At December 31,
1999, the Company had 2,023,622 shares of common stock reserved for issuance
under the stock plans.
In 1997, the Company's Board of Directors authorized the repurchase of up
to 750,000 shares of outstanding common stock or Class B warrants, in the
aggregate, from time to time in the open market and/or in private transactions.
In addition, the Company's Board of Directors authorized an odd-lot repurchase
program for holders of less than 100 shares of the Company's common stock. In
December 1999, the Company's Board of Directors authorized the repurchase of up
to an additional 500,000 shares of outstanding common stock in the aggregate,
from time to time in the open market and/or in private transactions.
The Company repurchased 334,600 shares of the Company's common stock for an
aggregate purchase price of $10,512 in 1999, repurchased 175,000 shares of
common stock for an aggregate purchase price of $5,236 in 1998 and repurchased
157,743 shares of common stock (including 57,343 shares in the odd-lot program)
and 8,100 Class B warrants for an aggregate purchase price of $4,266 in 1997.
The cost of the repurchased shares has been included in "Treasury Stock" and the
cost of the warrants has been deducted from "Capital in Excess of Par Value" in
the accompanying consolidated balance sheets.
When the treasury shares were reissued, any excess of the average
acquisition cost of the shares over the proceeds from re-issuance was charged to
"Capital in Excess of Par Value" in the accompanying consolidated balance
sheets.
Preferred Stock -- Authorized 10,000,000 shares, par value $.10 per share,
including 84,343 convertible redeemable preferred shares, 500,000 Series A
junior non-cumulative preferred shares and 9,415,657 shares undesignated as to
series.
(a) Convertible redeemable preferred stock -- $25 per share
liquidation preference and redemption value, none outstanding.
(b) Series A junior non-cumulative preferred stock -- Authorized
500,000 shares, par value $.10 per share. The shares are authorized for
issuance pursuant to certain rights that trade with the Company's common
stock. There are no shares of the Series A junior non-cumulative preferred
stock outstanding; however, all of the shares have been reserved for
issuance upon the exercise of the stock purchase rights as discussed in
"Stockholder Rights Plan" below.
(c) Undesignated as to series -- None outstanding. Shares may be
issued in one or more classes or series with preferences, limitations and
relative rights as determined by the Company's Board of Directors at the
time of issuance. Any shares issued will rank, as to dividends and
liquidation preference, junior to the convertible redeemable preferred
stock, if any shares are outstanding.
Class B Warrants -- The Company had issued Class B warrants which allowed
the holder to acquire an aggregate of 1,904,757 shares of common stock for $20
per share. Prior to their expiration in 1998, 1,848,277 warrants had been
exercised, of which 1,837,941 warrants were exercised in 1998, and 8,100
warrants had been repurchased.
Stockholder Rights Plan -- On November 7, 1996, the Company adopted a
rights plan and declared a dividend distribution of one preferred stock purchase
right for each outstanding share of the Company's common stock and each
outstanding share of the Company's outstanding convertible redeemable preferred
stock held of record on December 4, 1996. Under certain circumstances, each
right entitles the holder to purchase 1/100th of a share of the Company's Series
A junior non-cumulative preferred stock ("Series A Preferred Stock") at a price
of $80 ("Purchase Price"), subject to certain anti-dilution provisions. The
rights
35
<PAGE> 37
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
are not exercisable until the earlier to occur of (i) 10 days following a public
announcement that (a) a person or group has acquired, or has the right to
acquire, 15% or more of the outstanding shares of the Company's common stock or
(b) an institutional stockholder has acquired or has the right to acquire 20% or
more of the outstanding shares of common stock, or (ii) 10 business days
following the commencement of, or announcement of an intention to make, a tender
offer for 15% or more of the then outstanding shares of common stock. In such
event, each holder of a right (other than the person making the tender offer)
shall have the right to receive, upon exercise, the number of shares of common
stock or of 1/100th of a share of Series A Preferred Stock having a value of
equal to two times the Purchase Price. In the event of any merger, consolidation
or other transaction in which the Company's common stock is exchanged, each
holder of a right, upon exercise, will be entitled to receive common stock of
the acquiring company equal to two times the Purchase Price. Unless and until
the rights become exercisable, they will be transferred with the Company's
common stock. At the option of the Company, the rights are redeemable prior to
becoming exercisable at $.01 per right. Unless earlier redeemed or exchanged by
the Company, the rights will expire on November 7, 2006. Until a right is
exercised, the holder will have no rights as a stockholder of the Company,
including the right to vote or receive dividends.
The Credit Facility and each of the senior and senior subordinated note
indentures contain restrictions on the (i) payment of dividends on the Company's
common stock and (ii) purchase, redemption, retirement or other acquisition of
the Company's common stock, other than upon exercise into the Company's common
stock of options to acquire common stock issued pursuant to stock options and
stock payment plans. Under the terms of the Credit Facility, the most
restrictive of the Company's borrowing agreements, payment of cash dividends in
any fiscal quarter is limited to fifty percent of the Company's consolidated net
income (as defined in the credit agreement) for the preceding fiscal quarter.
(6) STOCK PLANS
Stock Option Plans
The Company has three stock option plans for key employees (the "1997
Employee Plan", the "1996 Employee Plan" and the "1993 Employee Plan",
collectively the "Employee Plans") to purchase a maximum of 1,500,000 shares
(500,000 shares for each plan) of the Company's common stock. Under all three
plans, the Company may grant incentive and non-qualified stock options. The
Company also has two stock option plans whereby options may be granted to
non-employee directors (the "1998 Director Plan", and the "1993 Director Plan",
collectively the "Director Plans") to purchase a maximum of 200,000 shares of
the Company's common stock (100,000 shares for each plan). Options under the
Director Plans are granted annually in a fixed amount.
Options granted under the Employee Plans will be exercisable at not less
than the closing price of the Company's common stock on date of grant. Options
granted under the Director Plans will be exercisable at not less than the
average closing price of the Company's common stock for the ten consecutive
trading days prior to the date of grant. The options are exercisable as
specified in the stock option agreements relating to them and may not be
exercised later than ten years from the date of grant.
As permitted by Statement of Financial Accounting Standards No. 123,
Accounting for Stock-Based Compensation ("SFAS No. 123"), the Company accounts
for its stock option plans under the accounting rules prescribed by Accounting
Principles Board Opinion No. 25, under which no compensation costs are
recognized as an expense. Had compensation costs for the stock options been
determined using the fair value
36
<PAGE> 38
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
method of accounting as recommended by SFAS No. 123, net income and earnings per
share for 1999, 1998 and 1997 would have been reduced to the following proforma
amounts:
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Net income --
As reported:
Income before extraordinary loss................... $72,395 $63,729 $47,187
Extraordinary loss................................. $ -- $ 3,026 $ 8,650
Net income......................................... $72,395 $60,703 $38,537
Proforma:
Income before extraordinary loss................... $70,196 $62,629 $46,420
Extraordinary loss................................. $ -- $ 3,026 $ 8,650
Net income......................................... $70,196 $59,603 $37,770
Basic earnings per share --
As reported:
Income before extraordinary loss................... $ 5.41 $ 4.99 $ 4.08
Extraordinary loss................................. $ -- $ (.24) $ (.75)
Net income......................................... $ 5.41 $ 4.75 $ 3.33
Proforma:
Income before extraordinary loss................... $ 5.25 $ 4.90 $ 4.01
Extraordinary loss................................. $ -- $ (.24) $ (.75)
Net income......................................... $ 5.25 $ 4.66 $ 3.26
Diluted earnings per share --
As reported:
Income before extraordinary loss................... $ 5.30 $ 4.68 $ 3.50
Extraordinary loss................................. $ -- $ (.22) $ (.62)
Net income......................................... $ 5.30 $ 4.46 $ 2.88
Proforma:
Income before extraordinary loss................... $ 5.14 $ 4.60 $ 3.44
Extraordinary loss................................. $ -- $ (.22) $ (.62)
Net income......................................... $ 5.14 $ 4.38 $ 2.82
</TABLE>
37
<PAGE> 39
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of the status of the stock option plans at December 31, 1999,
1998 and 1997 and changes during the years then ended is presented below:
<TABLE>
<CAPTION>
1999 1998 1997
--------------------- --------------------- ---------------------
WTD. WTD. WTD.
AVG. AVG. AVG.
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
---------- -------- ---------- -------- ---------- --------
<S> <C> <C> <C> <C> <C> <C>
Options outstanding
At beginning of
Year.............. 1,310,692 $27.11 1,110,392 $25.40 639,500 $22.89
Options granted:
Employee Plans....... 217,000 $27.78 220,000 $34.46 497,000 $28.28
Director Plans....... 8,000 $31.70 8,000 $45.22 9,000 $24.35
Options exercised:
Employee Plans....... (800) $26.13 (25,700) $21.91 (23,108) $18.79
Director Plans....... -- $ -- -- $ -- (9,000) $22.67
Options forfeited:
Employee Plans....... -- $ -- (2,000) $26.13 (3,000) $24.36
Director Plans....... -- $ -- -- $ -- -- $ --
---------- ---------- ----------
Options outstanding at
end of year.......... 1,534,892 $27.23 1,310,692 $27.11 1,110,392 $25.40
========== ========== ==========
Options exercisable at
end of year.......... 894,499 $26.05 647,367 $24.69 578,069 $22.95
========== ========== ==========
Weighted average fair
value per share of
option granted --
Employee Plans....... $ 9.64 $ 14.39 $ 8.49
Director Plans....... $ 13.52 $ 19.06 $ 9.64
</TABLE>
Options outstanding at December 31, 1999 had exercise prices ranging from
$15.13 to $20.00, $22.71 to $33.44 and $35.38 to $47.56 per share and a weighted
average remaining contractual life of 6.9 years. Options exercisable at December
31, 1999 had a weighted average remaining contractual life of 6.8 years. At
December 31, 1999, 114,500 shares of common stock were available for granting of
options, including 95,500 shares of common stock to non-employee directors.
The fair value of each option granted in 1999, 1998 and 1997 was estimated
on the date of grant using the Black-Scholes option pricing model with the
following weighted average assumptions: risk-free interest of 5.9% for 1999,
5.4% for 1998, and 6.1% for 1997; expected lives of 6.1 years in 1999, 8.1 years
in 1998 and 5.5 years for 1997; and expected volatility of 30.9% for 1999, 31.2%
for 1998 and 25.0% for 1997.
Stock Payment Plan
The Company's employee stock payment plan (the "Payment Plan") provides
that up to 25% of a key employee's annual incentive pay (compensation other than
base salary), which is charged to expense when earned, may be payable in shares
of the Company's common stock as determined by the Company's Board of Directors,
of which up to 50% of the shares payable will vest to the employee not later
than two years after the end of the incentive compensation year and will expire
in the event the employee is not employed by the Company on the vesting date.
Shares to be issued under the Payment Plan will be valued at the average closing
price of the common stock for a ten consecutive trading day period as defined in
the Payment Plan or closing price as of December 31 as determined by the
compensation agreement. The Payment Plan, as
38
<PAGE> 40
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
amended, has a 15-year term and commenced on January 1, 1994. In 1999, 10,120
shares were issued to corporate officers and key employees at prices ranging
from $29.92 to $32.69 per share, in 1998, 9,095 shares were issued to officers
and key employees at prices ranging from $25.05 to $45.09 per share and in 1997,
18,559 shares were issued to officers and key employees at prices ranging from
$16.74 to $28.21 per share. As of December 31, 1999, 182,590 shares were
available for issuance under the Payment Plan.
Restricted Stock Plans
The Company has two restricted stock plans for officers and other key
employees (the "1994 Restricted Plan", the "1998 Restricted Plan" and
collectively the "Restricted Plans") under which, a maximum of 370,000 shares
(250,000 shares for the 1994 Restricted Plan and 120,000 shares for the 1998
Restricted Plan) of the Company's common stock may be granted as restricted
stock. Participants in the 1994 Restricted Plan may not dispose of any of the
stock granted for five years from date of grant and restrictions lapse at the
rate of 20% of the stock granted per year, commencing with the end of the fifth
year. Shares granted under the 1998 Restricted Plan will be granted at not less
than the closing price of the common stock at date of grant. Participants in the
1998 Restricted Plan may not dispose of any of the stock granted until 2003 and
restrictions lapse at the rate of 30% of the stock granted in 2003 and 10% per
year thereafter. As defined in the Restricted Plans, the lapsing of the
restrictions may be accelerated if certain stipulated improvements in the
Company's financial performance over the base years are achieved or if a change
in control occurs.
In 1999, 1997 and 1995, a total of 251,008 restricted shares of the
Company's common stock were issued to officers and other key employees. The
market value of the shares issued has been charged to stockholders' equity as
Unearned Compensation on Restricted Stock and is being amortized to expense over
the terms of Restricted Plans. Based on the Company's performance in 1999, the
146,008 shares issued under the 1994 Restricted Plan vested with the release of
the financial results for 1999. Accordingly, the Company expensed the
unamortized market value related to these shares in 1999. As of December 31,
1999, 15,000 shares were available for issuance under the 1998 Restricted Plan.
Non-Employee Director Stock Plan
In 1997, the Company adopted a stock plan for non-employee directors (the
"Director Stock Plan"). Under the Director Stock Plan, a maximum of 100,000
shares of the Company's common stock may be granted to non-employee directors as
compensation for services as a director. Shares granted under the Director Stock
Plan will be granted annually in an amount equal to each directors' base
retainer at the closing price of the common stock on date of grant. In 1999,
6,096 shares were issued to non-employee directors at $34.12 per share. In 1998,
13,256 shares were issued to non-employee directors at prices ranging from
$24.62 to $47.27 per share. As of December 31, 1999, 80,648 shares were
available for issuance under the Director Stock Plan.
39
<PAGE> 41
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(7) EARNINGS PER SHARE
Basic earnings per share includes the weighted average number of common
shares outstanding for the periods. Diluted earnings per share includes (i) the
assumed exercise of stock options, (ii) the dilutive effect of the Class B
warrants through their exercise and expiration in June 1998 and the convertible
redeemable preferred stock through its redemption and conversion in March 1997,
and (iii) the assumed conversion of the Debentures through their redemption and
conversion in September 1997. The following table summarizes the basic earnings
per share and diluted earnings per share computations for 1999, 1998 and 1997:
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Basic earnings per share:
Income before extraordinary loss............ $ 72,395 $ 63,729 $ 47,187
Extraordinary loss.......................... -- 3,026 8,650
----------- ----------- -----------
Net income.................................. $ 72,395 $ 60,703 $ 38,537
=========== =========== ===========
Weighted average number of shares........... 13,379,374 12,782,881 11,573,094
=========== =========== ===========
Earnings per share --
Income before extraordinary loss......... $ 5.41 $ 4.99 $ 4.08
Extraordinary loss....................... $ -- $ (.24) $ (.75)
Net income............................... $ 5.41 $ 4.75 $ 3.33
Diluted earnings per share:
Income before interest applicable to
convertible subordinated debentures and
extraordinary loss....................... $ 72,395 $ 63,729 $ 47,187
Interest applicable to convertible
subordinated debentures, net of income
taxes.................................... -- -- 1,818
----------- ----------- -----------
Income before extraordinary loss, assuming
dilution................................. 72,395 63,729 49,005
Extraordinary loss.......................... -- 3,026 8,650
----------- ----------- -----------
Net income, assuming dilution............... $ 72,395 $ 60,703 $ 40,355
=========== =========== ===========
Weighted average number of common shares.... 13,379,374 12,782,881 11,573,094
Incremental shares from assumed
conversions --
Convertible preferred stock.............. -- -- 19,070
Contingent common shares................. 35,452 61,508 29,253
Stock options............................ 253,932 355,280 208,514
Class B warrants......................... 404,415 650,259
Convertible subordinated debentures...... -- -- 1,555,856
----------- ----------- -----------
Adjusted weighted average number of common
Shares................................... 13,668,758 13,604,084 14,036,046
=========== =========== ===========
Earnings per share --
Income before extraordinary loss......... $ 5.30 $ 4.68 $ 3.50
Extraordinary loss....................... $ -- $ (.22) $ (.62)
Net income............................... $ 5.30 $ 4.46 $ 2.88
</TABLE>
40
<PAGE> 42
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(8) PROFIT SHARING
The Company has a qualified profit sharing and 401(k) savings plan for the
benefit of its employees which may be terminated at any time at the option of
the Company. The annual contributions to the profit sharing portion of the plan
may be made in such amounts as the Board of Directors of the Company determines.
The Company matches portions of employees' voluntary contributions to the 401(k)
savings portion of the plan. The Company provided for profit sharing and
matching 401(k) contributions of $1,715 in 1999, $1,576 in 1998, and $1,484 in
1997.
(9) COMMITMENTS AND CONTINGENCIES
Housing
The Company is significantly affected by the cyclical nature of the home
building industry, which is sensitive to fluctuations in economic activity,
interest rates and the level of consumer confidence. The sale of new homes and
profitability from sales are heavily influenced by the level and expected
direction of interest rates. Increases in interest rates tend to have a
depressing effect on the market for new homes in view of increased monthly
mortgage costs to potential homebuyers.
As of December 31, 1999, the Company had refundable and nonrefundable
deposits totaling $47,165 for options and contracts to purchase undeveloped land
and finished lots having a total purchase price of approximately $533,860. The
Company had incurred pre-development costs of $56,048 relating to these
properties. These options expire at various dates through 2006.
At December 31, 1999, the Company, in connection with managing interest
costs, had an interest rate swap agreement outstanding with a notional amount of
$50,000. The fair value of the agreement at December 31, 1999 was $30. The fair
value is based on the estimated termination value and represents the amount the
Company would have to pay to terminate the agreement at December 31, 1999.
The Company is involved from time to time in litigation arising from the
normal course of business, none of which, in the opinion of the Company, are
expected to have a material adverse effect on the financial position or results
of operations of the Company.
Financial Services
At December 31, 1999, Mortgage, in connection with managing the interest
rate market risk on its inventory loans held for sale of $50,508 and Loan Quotes
of $27,001, had outstanding $49,381 (face amount of $50,000 and estimated fair
value of $48,591) of Forward Contracts and $26,798 of Forward Commitments which
expire over the next three months, when the inventory loans are expected to be
sold and Loan Quotes are expected to close. At December 31, 1999, the estimated
fair value of the inventory loans and Loan Quotes hedged by Forward Contracts
and not covered by the Forward Commitments was $50,102.
Mortgage reduces its risk of nonperformance under the Hedging Contracts by
entering into those contracts with reputable security dealers and investors and
evaluating their financial condition. However, there is a risk if certain of the
Loan Quotes do not close or are renegotiated in a declining interest rate market
and close at lower prices. Mortgage reduces this risk by collecting commitment
fees on certain of the Loan Quotes along with entering into Forward Commitments
to deliver loans to investors on a best efforts basis and adjusting, from time
to time, the estimate of loan closings covered by Forward Contracts.
41
<PAGE> 43
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(10) UNAUDITED SUMMARIZED CONSOLIDATED QUARTERLY INFORMATION
Summarized quarterly financial information for the year ended December 31,
1999 and 1998 is as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
---------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1999 1999 1999 1999
--------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Housing --
Operating revenues................... $392,337 $450,113 $462,676 $480,861
Cost of products sold................ $320,161 $366,606 $376,549 $388,727
Operating income..................... $ 23,519 $ 27,189 $ 29,336 $ 33,818
Financial Services --
Operating revenues................... $ 8,311 $ 9,786 $ 10,790 $ 9,582
Operating income..................... $ 3,347 $ 4,388 $ 4,797 $ 3,640
Corporate General and Administrative... $ 3,604 $ 3,562 $ 2,864 $ 4,172
Net Income............................. $ 14,539 $ 17,509 $ 19,544 $ 20,803
Basic Earnings Per Share............... $ 1.09 $ 1.31 $ 1.46 $ 1.56
Diluted Earnings Per Share............. $ 1.06 $ 1.28 $ 1.43 $ 1.55
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED
---------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1998 1998 1998 1998
--------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Housing --
Operating revenues................... $327,443 $359,383 $373,158 $404,088
Cost of products sold................ $264,845 $293,279 $304,344 $330,323
Operating income..................... $ 20,117 $ 21,392 $ 22,180 $ 25,901
Financial Services --
Operating revenues................... $ 7,102 $ 8,124 $ 8,818 $ 9,533
Operating income..................... $ 2,400 $ 3,076 $ 3,571 $ 3,706
Corporate General and Administrative... $ 3,334 $ 3,141 $ 3,390 $ 3,185
Income before Extraordinary Loss....... $ 19,559 $ 13,436 $ 14,088 $ 16,646
Extraordinary Loss..................... $ 1,530 $ 1,496 $ -- $ --
Net Income............................. $ 18,029 $ 11,940 $ 14,088 $ 16,646
Basic Earnings Per Share:
Income before extraordinary loss..... $ 1.66 $ 1.11 $ 1.03 $ 1.23
Extraordinary loss................... $ (.13) $ (.12) $ -- $ --
Net income........................... $ 1.53 $ .99 $ 1.03 $ 1.23
Diluted Earnings Per Share:
Income before extraordinary loss..... $ 1.49 $ 1.01 $ 1.00 $ 1.20
Extraordinary loss................... $ (.12) $ (.11) $ -- $ --
Net income........................... $ 1.37 $ .90 $ 1.00 $ 1.20
</TABLE>
(11) RECEIVABLES
The Company had housing and financial services receivables of approximately
$5,907 in 1999 and $7,022 in 1998 that were due after one year. The 1999 balance
due after one year included notes and mortgage notes receivable of $5,632 with
interest rates ranging from 8% to 10%. A majority of the balance matures within
5 years.
42
<PAGE> 44
U.S. HOME CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(12) ACCRUED EXPENSES
At December 31, 1999 and 1998, accrued expenses and other current
liabilities consisted of the following:
<TABLE>
<CAPTION>
1999 1998
-------- -------
<S> <C> <C>
Corporate and Housing --
Customer deposits......................................... $ 48,615 $38,711
Salaries and other compensation........................... 23,271 16,515
Interest.................................................. 19,197 14,644
Income taxes.............................................. 10,651 5,895
Taxes, other than income taxes............................ 4,430 4,318
Other..................................................... 11,247 9,073
-------- -------
$117,411 $89,156
======== =======
Financial Services --
Accounts payable.......................................... $ 4,255 $24,441
Other..................................................... 8,422 7,846
-------- -------
$ 12,677 $32,287
======== =======
</TABLE>
(13) SUBSEQUENT EVENTS
In February 2000, Lennar Corporation ("Lennar") entered into a definitive
agreement to acquire the Company through a merger in which the U.S. Home
stockholders will receive a total of approximately $476 million, of which
approximately one-half will be in cash and the remainder will be in common stock
of Lennar (with the common stock portion, and therefore the total purchase
price, subject to adjustment if the price of Lennar's stock is greater or lower
than specified levels) in exchange for their stock. U.S. Home will become a
wholly-owned subsidiary of Lennar. At the time the acquisition takes place, the
Company's debt is expected to include bank debt and approximately $525 million
of publicly-held debt. The holders of the publicly-held debt have the right to
require U.S. Home to redeem such debt within 90 days of the completion of the
transaction, and the lenders under the Company's Credit Facility can accelerate
the debt outstanding thereunder. In addition, the bank debt of certain of the
Company's subsidiaries may become due upon consummation of the merger. Lennar
has informed the Company that it has access to the resources required to close
the transaction and, if necessary, refinance U.S. Home's debt. The transaction
is subject to approval by the stockholders of both companies, as well as
expiration or termination of any applicable waiting periods under antitrust laws
and other regulatory matters and other customary closing conditions. If the
necessary stockholder and regulatory approvals are obtained and other closing
conditions are satisfied, the Company expects the transaction to close by the
end of May 2000.
Lennar has informed the Company that Lennar will account for the proposed
acquisition using the purchase method of accounting, which requires an
allocation of the purchase price to the assets acquired and liabilities assumed.
The Company's consolidated financial statements have been prepared on the
historical cost basis of accounting in accordance with generally accepted
accounting principles. The Company's historical cost basis of its net assets
(total shareholders' equity) is greater than the current estimated purchase
price.
In February 2000, the Company amended and restated its Credit Facility by
increasing the commitment to $360,000 and extending the termination date to May
31, 2002. The other terms and conditions remained substantially the same as the
prior Credit Facility.
43
<PAGE> 45
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
SERVED AS
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
OTHER DIRECTORSHIPS(1) SINCE BOARD COMMITTEE MEMBERSHIP
-------------------------------- --------- --------------------------
<S> <C> <C>
Glen Adams (61 yrs.); Private investor 1993
and a director of certain
companies(2).......................... Finance; Nominating and Conflict of
Interest
Steven L. Gerard (54 yrs.); Chairman and 1993
Chief Executive Officer of Great Point
Capital, inc.(3)...................... Compensation and Stock Option; Finance
Kenneth J. Hanau, Jr. (73 yrs.); 1976
Chairman of K&H Corrugated Case
Corporation(4)........................ Audit: Compensation and Stock Option;
Executive
Isaac Heimbinder (56 yrs.); President, 1984
Co-Chief Executive Officer and Chief
Operating Officer of the Company(5)... Executive
Malcolm T. Hopkins (72 yrs.); Private 1993
investor and a director of several
companies(6).......................... Audit; Executive
Charles A. McKee (81 yrs.); Former 1978
Chairman and Chief Executive Officer
of Electrolux Corporation(7).......... Audit; Compensation and Stock Option
George A. Poole, Jr. (68 yrs.); Private 1993
investor and a director of several
companies(8).......................... Audit; Nominating and Conflict of
Interest
Herve Ripault (59 yrs.); Associate of 1982
Optigestiom S.A., a French fund
management company(9)................. Finance; Nominating and Conflict of
Interest
James W. Sight (44 yrs.); Private 1993
investor and a director of several
companies(10)......................... Compensation and Stock Option; Finance;
Nominating and Conflict of Interest
Robert J. Strudler (57 yrs.); Chairman 1984
and Co-Chief Executive Officer of the
Company(11)........................... Executive
</TABLE>
- ---------------
(1) Unless otherwise indicated, Directors have held the position with the
Company or have been engaged in the principal occupation indicated for at
least five years.
(2) Mr. Adams has been a private investor and a director of several companies
since August 15, 1996. Mr. Adams was previously Chairman, President and
Chief Executive Officer of Southmark Corporation from August 1990 until
August 15, 1996. Southmark Corporation, a real estate and financial
services company, was engaged in the liquidation of its assets pursuant to
a Chapter 11 plan of reorganization which became effective in August 1990.
Prior to joining Southmark, Mr. Adams served as Chairman, President and
Chief Executive Officer of The Great Western Sugar Company, a sugar
manufacturer, from 1986 to 1989 during its bankruptcy case. He previously
served from 1983 to 1986 as Vice President
44
<PAGE> 46
and General Counsel of Hunt International Resources Corp., a holding company for
Great Western and other entities. Mr. Adams serves as a director of Zale
Corporation.
(3) Mr. Gerard has been Chairman and Chief Executive Officer of Great Point
Capital, Inc., an investment concern, since 1997. Mr. Gerard was previously
Chairman and Chief Executive Officer of Triangle Wire & Cable Inc., a major
manufacturer of electrical wire and cable products, and its successor,
Ocean View Capital, Inc., from September 1992 to July 31, 1997. Mr. Gerard
was previously Chief Executive Officer and Director of Mountleigh Group,
PLC ("Mountleigh"), a London-based company engaged in property management
and retailing, from April 1992 to July 1992. Mr. Gerard was hired in
connection with the restructuring of Mountleigh. In connection with the
restructuring, Mountleigh was placed in U.K. receivership on May 23, 1992.
From July 1990 until April 1992, Mr. Gerard was a Senior Managing Director
of Citibank, NA. ("Citibank"), responsible for credit, portfolio and risk
management for Citibank's corporate and investment banking activities in
the United States, Japan, Europe and Australia; from August 1987 to July
1990, he was Division Executive for the National Corporate Finance Division
of Citibank and prior thereto, he was the Senior Corporate Workout Officer
of the Institutional Recovery Management Division of Citibank. Mr. Gerard
is also a director of The Fairchild Corporation.
(4) Mr. Hanau is Chairman of K&H Corrugated Case Corporation, a manufacturer of
corrugated packaging materials, located in Walden, New York, and has been
associated with that company for more than five years. Mr. Hanau is also a
director of Cosco Industries and Tinque, Brown, Inc.
(5) Mr. Heimbinder has served as President, Co-Chief Executive Officer and
Chief Operating Officer of the Company since April 26, 1995; prior thereto
he had been President and Chief Operating Officer of the Company since May
12, 1986.
(6) Mr. Hopkins has been a private investor and a director of several companies
for more than the past five years. He served as Vice Chairman and Chief
Financial Officer of the former St. Regis Corporation, a paper and forest
products company with interests in oil and gas and insurance, from 1980 to
1984. Mr. Hopkins is a director of Columbia Energy Group, The Metropolitan
Series Fund, Inc. and AFR HoldCo, Inc. Mr. Hopkins is also a trustee of
State Street Research & Management Company.
(7) Mr. McKee retired as Chairman and Chief Executive Officer of Electrolux
Corporation, a manufacturer of vacuum cleaners and floor care products,
located in Stamford, Connecticut, on June 30, 1983 and as Executive Vice
President and Director of Sara Lee Corporation (formerly Consolidated Foods
Corporation) on October 31, 1983 after having served in such capacities for
more than five years. Mr. McKee is a director of Magnetic Analysis Corp.
(8) Mr. Poole has been a private investor for more than the past five years.
Mr. Poole serves as a director of Anacomp, Inc. and Harvard Industries,
Inc.
(9) Mr. Ripault has been an Associate of Optigestiom S.A., a French fund
management company, since November 1991. Mr. Ripault retired in October
1991 as Chairman of the Board of Delahaye-Ripault, S.A., Agent de Change, a
member of the Paris Stock Exchange, Paris, France. Mr. Ripault had been
associated with such firm from June 1985 until his retirement. Mr. Ripault
was associated with Societe des Maisons Phenix, a homebuilding company in
France, from 1979 to 1985, during which time he was Executive Vice
President -- Finance.
(10) Mr. Sight has been a private investor for more than the past five years. He
has also served as Vice President and a director of Sight Leasing Co. Inc.,
a car leasing company, from 1978 until its dissolution in December 1992.
Mr. Sight served as Co-Chairman and a director of Metro Airlines, Inc., a
former regional feeder airline from December 1992 until its liquidation in
1995. Mr. Sight is also a director of United Recycling Industries and
Westmoreland Coal Co.
(11) Mr. Strudler has served as Chairman and Co-Chief Executive Officer of the
Company since April 26, 1995; and prior thereto he had been Chairman and
Chief Executive Officer of the Company since May 12, 1986. Mr. Strudler
also served as a director of the Company from January 27, 1983 until March
22, 1984.
45
<PAGE> 47
Information relating to the Company's executive officers is set forth in
Part I under the caption "Executive Officers of the Company."
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
The Company is not aware of any reporting person, as defined in Item 405 of
Regulation S-K, that failed to file on a timely basis, reports required by
Section 16(a) of the Exchange Act.
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth a summary of annual and long-term
compensation (for 1999, 1998 and 1997) awarded to, earned by, or paid to the
Chairman and Co-Chief Executive Officer of the Company and each of the four most
highly compensated executive officers of the Company (other than the Chairman
and Co-Chief Executive Officer) whose total annual salary and bonus for the year
ended December 31, 1999, was in excess of $100,000:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
-------------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
------------------------------------ --------------------------- -------
(a) (b) (c) (d) (e) (f) (g) (h) (i)
SECURITIES
OTHER ANNUAL RESTRICTED UNDERLYING LTIP ALL OTHER
SALARY BONUS COMPENSATION STOCK AWARDS OPTIONS/SARS PAYOUTS COMPENSATION
NAME OF PRINCIPAL POSITION YEAR ($)(1) ($)(2) ($) ($)(3)(4) (#)(5) ($) ($)(6)(7)
- -------------------------- ---- -------- ---------- ------------ ------------ ------------ ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Robert J. Strudler; 1999 $600,000 $1,104,802 $ -- $166,250 80,000 $ -- $ 6,310
Chairman and Co-Chief 1998 525,000 834,928 -- -- -- -- 6,310
Executive Officer 1997 475,000 688,000 -- -- 225,000 -- 20,890
Isaac Heimbinder; 1999 $590,000 $1,104,802 $ -- $166,250 80,000 $ -- $ 6,310
President, Co-Chief 1998 515,000 834,928 -- -- -- -- 6,310
Executive Officer 1997 465,000 688,000 -- -- 225,000 -- 21,261
and Chief Operating
Officer
Craig M. Johnson; 1999 $250,000 $ 250,000 $ -- $166,250 5,000 $ -- $ 5,825
Senior Vice President -- 1998 235,000 235,000 -- -- 15,000 -- 5,825
Community Development 1997 210,000 210,000 -- -- 5,000 -- 4,725
Chester P. Sadowski; 1999 $190,000 $ 180,000 $ -- $166,250 3,000 $ -- $ 7,428
Senior Vice President -- 1998 181,250 150,000 -- -- 8,000 -- 6,028
Controller and Chief 1997 170,000 125,000 -- -- 3,000 -- 4,928
Accounting Officer
Gary L. Frueh; 1999 $180,000 $ 175,000 $ -- $166,250 3,000 $ -- $ 6,480
Senior Vice President -- 1998 168,750 225,000 -- -- 8,000 -- 6,480
Tax and Audit 1997 152,000 114,000 -- -- 3,000 -- 5,213
</TABLE>
- ---------------
(1) Amounts shown include the dollar value of base salary (cash and non-cash)
earned by the executive officers named above.
(2) Amounts shown include the dollar value of bonuses (cash and non-cash) earned
by the executive officers named above. Pursuant to the 1999 Corporate
Officers' Incentive Compensation Program (the "1999 Program"), the 1998
Corporate Officers' Incentive Compensation Program (the "1998 Program") and
the 1997 Corporate Officers' Incentive Compensation Program (the "1997
Program," and together with the 1999 Program and the 1998 Program, the
"Incentive Programs"), the Board of Directors of the Company, on the
recommendation of the Compensation and Stock Option Committee of the Board
of Directors of the Company (the "Compensation Committee"), approved payment
of incentive compensation to Messrs. Johnson, Frueh and Sadowski for
services rendered in 1999, 1998 and 1997. In addition to the incentive
compensation received under the 1998 Program, Mr. Frueh was awarded a
special bonus of $75,000 for his work in connection with the successful
completion of certain federal tax matters which is also included in the
table above. Payment of contractual incentive compensation to
46
<PAGE> 48
Messrs. Strudler and Heimbinder was made pursuant to the terms and
conditions of their respective employment agreements. See "Employment
Contracts and Termination of Employment and Change-in-Control Arrangements."
(3) Amount shown for 1999 includes the dollar value of 5,000 shares of the
Company's common stock awarded to the executive officers named above on
April 22, 1999 pursuant to the 1998 Restricted Stock Plan, which was adopted
by the Board of Directors of the Company on June 10, 1998 and approved by
the Company's stockholders at the 1999 annual meeting of stockholders.
Subject to forfeiture provisions and accelerated vesting provisions, 30% of
the shares of the Company's common stock awarded to each employee will vest
with each employee commencing in 2003. For each year thereafter, an
additional 10% of the shares of the Company's common stock awarded will
vest. With respect to shares of the Company's common stock issued but
unvested, the participants shall have the right to vote such shares and to
receive any cash dividends.
(4) The number and value of the aggregate unvested restricted stock holdings at
the end of the last completed fiscal year for the executive officers named
above are: each of Messrs. Strudler, Heimbinder, Johnson, Frueh and
Sadowski -- 16,119 shares, with a value of $412,042.
(5) Pursuant to the 1997 Employee Plan, options were granted to acquire shares
of the Company's common stock to certain officers and other employees of the
Company. See "Stock Options."
(6) The Company has a qualified profit sharing plan for the benefit of its
employees. There were no contributions made to the profit sharing plan in
1999. The amounts shown for 1998 and 1997 are comprised of the following:
(i) contributions to the Company's profit sharing plan; (ii) 401(k)
contributions by the Company; (iii) premium for a universal life insurance
policy with a cash surrender value; and certain other benefits for Messrs.
Strudler ($15,680) and Heimbinder ($16,051) in 1997. The amounts shown for
1999 are comprised of the following:
<TABLE>
<CAPTION>
LIFE
INSURANCE
OFFICER 401(k) PREMIUM OTHER
- ------- ------ --------- ------
<S> <C> <C> <C>
Robert J. Strudler................................ $4,800 $1,510 --
Isaac Heimbinder.................................. $4,800 $1,510 --
Craig M. Johnson.................................. $4,800 $1,025 --
Chester P. Sadowski............................... $4,800 $1,228 $1,400
Gary L. Frueh..................................... $4,800 $1,680 --
</TABLE>
(7) Mr. Strudler and Mr. Heimbinder are also entitled to retirement benefits
under their respective employment agreements on the terms and conditions
specified therein. See "Employment Contracts and Termination of Employment
and Change-in-Control Arrangements."
STOCK OPTIONS
The following table contains information concerning grants of options to
acquire shares of the Company's common stock made during the year ended December
31, 1999 to the Chairman and Co-Chief Executive Officer of the Company and each
of the four most highly compensated executive officers of the Company (other
than the Chairman and Co-Chief Executive Officer) whose total annual salary and
bonus for the year ended December 31, 1999, was in excess of $100,000:
47
<PAGE> 49
OPTIONS/SAR GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE VALUE
AT ASSUMED ANNUAL RATES
OF STOCK PRICE APPRECIATION
INDIVIDUAL GRANTS FOR OPTION TERM
------------------------------------------------- ---------------------------
(a) (b) (c) (d) (e) (f) (g)
- -------------------------------- ------------ ---------- -------- ---------- ----------- -------------
% OF TOTAL
NUMBER OF OPTIONS/
SECURITIES SARS
UNDERLYING GRANTED TO EXERCISE
OPTIONS/ EMPLOYEES OR BASE
SARS GRANTED IN FISCAL PRICE EXPIRATION
NAME (# SH)(1) YEAR ($/SH) DATE 5% ($) 10% ($)
- -------------------------------- ------------ ---------- -------- ---------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Robert J. Strudler.............. 30,000(2) 13.8% $33.44 4/20/09 $630,859 $1,598,722
50,000(3) 23.0% $24.94 10/15/09 $784,152 $1,987,197
Isaac Heimbinder................ 30,000(2) 13.8% $33.44 4/20/09 $630,859 $1,598,722
50,000(3) 23.0% $24.94 10/15/09 $784,152 $1,987,197
Craig M. Johnson................ 5,000(3) 2.3% $24.94 10/15/09 $ 78,415 $ 198,719
Chester P. Sadowski............. 3,000(3) 1.4% $24.94 10/15/09 $ 47,049 $ 119,231
Gary L. Frueh................... 3,000(3) 1.4% $24.94 10/15/09 $ 47,049 $ 119,231
</TABLE>
- ---------------
(1) The purpose of the 1997 Employee Plan is to provide an incentive to key
employees, including officers and managerial or supervisory employees who
are salaried employees of the Company, to remain in the employ of the
Company and to have a proprietary interest in the Company. 500,000 shares of
the Company's common stock have been reserved for issuance in accordance
with the provisions of the 1997 Employee Plan.
Options granted under the 1997 Employee Plan are intended to be designated
as (i) "Incentive Stock Options" as defined in Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Tax Code"), (ii)
nonqualified stock options or (iii) any combination of Incentive Stock
Options and nonqualified stock options. In the event that a portion of an
option cannot be exercised as an Incentive Stock Option by reason of the
limitations contained in Section 422(d) of the Tax Code, such portion will
be treated as a nonqualified stock option.
Pursuant to the 1997 Employee Plan, the exercise price for any Incentive
Stock Option and/or a nonqualified stock option will be the closing price of
the Company's common stock on the NYSE on the date that such option is
granted. No option granted under the 1997 Employee Plan may be exercised
more than 10 years from the date such option is granted.
(2) As of April 20, 1999, pursuant to the 1997 Employee Plan, options to acquire
an aggregate of 70,000 shares of the Company's common stock were granted to
certain employees of the Company, including Messrs. Strudler and Heimbinder.
The options granted to Messrs. Strudler and Heimbinder became exercisable
upon grant.
(3) As of October 15, 1999, pursuant to the 1997 Employee Plan, options to
acquire an aggregate of 145,000 shares of the Company's common stock were
granted to certain employees of the Company, including Messrs. Strudler,
Heimbinder, Johnson, Frueh and Sadowski. The options granted to Messrs.
Strudler and Heimbinder became exercisable upon grant. The options granted
to Messrs. Johnson, Frueh and Sadowski become exercisable in equal annual
installments over a three year period commencing on October 15, 2000.
48
<PAGE> 50
The following table contains information concerning the exercise of stock
options during the fiscal year ended December 31, 1999, and the fiscal year-end
value of unexercised options by the Chairman and Co-Chief Executive Officer of
the Company and each of the four most highly compensated executive officers of
the Company (other than the Chairman and Co-Chief Executive Officer) whose total
annual salary and bonus for the year ended December 31, 1999, was in excess of
$100,000:
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION/SAR VALUES
<TABLE>
<CAPTION>
(a) (b) (c) (d) (e)
- ------------------------- ------------ -------- ------------------------- -------------------------
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY
SHARES VALUE OPTIONS/SARS AT OPTIONS/SARS AT
ACQUIRED ON REALIZED FY-END (#) FY-END ($)
NAME EXERCISE (#) ($) EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE
---- ------------ -------- ------------------------- -------------------------
<S> <C> <C> <C> <C>
Robert J. Strudler....... -- -- 250,000/200,000 $378,288/$-0-
Issac Heimbinder......... -- -- 250,000/200,000 $378,288/$-0-
Craig M. Johnson......... -- -- 29,001/17,999 $77,555/$3,125
Chester P. Sadowski...... -- -- 24,000/10,000 $74,680/$1,875
Gary L. Frueh............ -- -- 17,000/10,000 $17,948/$1,875
</TABLE>
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND
CHANGE-IN-CONTROL ARRANGEMENTS
SECOND AMENDED AND RESTATED EMPLOYMENT AND CONSULTING AGREEMENTS
Mr. Strudler entered into an Employment and Consulting Agreement with the
Company on May 12, 1986, which was amended and restated on February 9, 1999, and
Mr. Heimbinder entered into a similar Employment and Consulting Agreement with
the Company on May 12, 1986, which was amended and restated on February 9, 1999
(collectively, the "Employment Agreements"). Each of the Employment Agreements
was subsequently amended as of February 9, 2000 (the "2000 amendments"). The
Employment Agreements currently provide for Messrs. Strudler's and Heimbinder's
continued employment with the Company as Chairman and Co-Chief Executive Officer
and President, Co-Chief Executive Officer and Chief Operating officer,
respectively, until June 20, 2002 unless sooner terminated by Messrs. Strudler's
or Heimbinder's voluntary resignation or otherwise terminated by Messrs.
Strudler or Heimbinder pursuant to the terms of the applicable Employment
Agreement (the "Employment Term"). The Employment Term shall automatically be
extended for one additional year on June 20, 2000 (to June 20, 2003), and on
each subsequent anniversary thereof, provided that either the Company or Messrs.
Strudler and Heimbinder shall not have otherwise elected by notice in writing
delivered to the other at least 90 days prior to any such anniversary. Under the
Employment Agreements, during 1999, Messrs. Strudler and Heimbinder were paid
annual base salaries of $600,000 and $590,000, respectively, and will be paid
salaries thereafter which are subject to minimum increases equal to any increase
in the cost of living in the preceding year, as measured by the Consumer Price
Index -- U.S. City Averages, as published by the Bureau of Labor Statistics of
the United States Department of Labor and which are subject to annual review by
the Board. Messrs. Strudler and Heimbinder are also to be paid incentive
compensation for each fiscal year that the Company is profitable based upon a
formula set forth in the Employment Agreements. Pursuant to the Employment
Agreements, Messrs. Strudler and Heimbinder are entitled to receive incentive
compensation equal to the sum of the following: (i) one-half (1/2) of one
percent (1%) of the first $10,000,000 of the Company's pre-tax income for such
year, plus (ii) three-fourths (3/4) of one percent (1%) of the next $10,000,000
of the Company's pre-tax income for such year, plus (iii) one percent (1%) of
the Company's pre-tax income for such year in excess of $20,000,000. Pursuant to
the Employment Agreements, a portion of any compensation otherwise payable will
be deferred if it would otherwise not be deductible by the Company because of
the limitations set forth in Section 162(m) of the Tax Code. However, pursuant
to the 2000 Amendments, the amount of income recognized in calendar year 2000 as
a result of the vesting of otherwise restricted shares under the Restricted
Stock Plan by reason of the Company's attainment of financial goals during
calendar year 1999 will not be
49
<PAGE> 51
included in the determination of the amount deferred for either calendar year.
In addition, Messrs. Strudler and Heimbinder agreed to serve as consultants to
the Company for a period of five years after the Employment Term ceases, with
consulting fees payable at 1999 rates of $153,280 and $143,390 per year,
respectively, subject to cost of living adjustments, and, in the case of Mr.
Strudler, will receive reimbursement of expenses for maintenance of an office
and secretarial and transportation assistance in an amount not to exceed $50,000
per year. They will also be entitled to retirement benefits upon the later of
attainment of age 58 or the end of the Employment Term equal to sixty percent
(60%) of their highest monthly base salaries during the Employment Term. They
may also elect an early retirement benefit in a reduced amount. The Company's
obligation to pay these retirement benefits has been substantially provided for
by annuities owned by a trust established by the Company for that purpose.
Messrs. Strudler and Heimbinder may be terminated for cause, as defined in
the Employment Agreements. If either Mr. Strudler or Mr. Heimbinder is
terminated without cause during the Employment Term, he will be entitled to
receive a lump sum cash payment equal to the sum of (i) the balance of the base
salary which would have been paid during the remainder of the Employment Term
(but not less than three years), (ii) an amount equal to bonuses earned,
including any amounts deferred, in respect to the most recently completed three
calendar years, (iii) the actuarial present value of retirement benefits (or, at
the option of the employee, in monthly installments) under the Employment
Agreement and (iv) an amount equal to any consulting fee payable under the
Employment Agreement.
If a "Control Change" (as defined below) is followed within two years by a
"Material Change" (as defined below), each of Mr. Strudler and Mr. Heimbinder
may terminate his employment and receive the payments referred to in clauses
(i), (ii) and (iv) of the preceding paragraph as well as the normal monthly
retirement payments referred to in clause (iii) of the preceding paragraph. A
"Material Change" occurs if (w) Mr. Strudler's or Mr. Heimbinder's respective
employment is terminated without cause, (x) Mr. Strudler's or Mr. Heimbinder's
respective functions, duties or responsibilities are adversely changed, (y) Mr.
Strudler's or Mr. Heimbinder's respective base salary is reduced or (z) Mr.
Strudler or Mr. Heimbinder is assigned to a place of employment which is more
than 10 miles from his present place of employment and which is not the
corporate headquarters of the Company. In addition, if a Control Change occurs,
each of Mr. Strudler and Mr. Heimbinder may terminate his employment even if a
Material Change has not occurred, but will not be entitled to receive the lump
sum cash payment referred to in the preceding paragraph. However, each will
serve as a consultant to the Company and be compensated at the 1999 rate of
$153,280 (for Mr. Strudler) or $143,390 (for Mr. Heimbinder) per annum (subject
to cost of living increases) for five years thereafter, and will be entitled to
payment of the normal monthly retirement benefits and certain other benefits as
provided under the Employment Agreements.
Pursuant to the 2000 Amendments, each of Messrs. Strudler and Heimbinder is
entitled to a "gross up" in the event that payments received by him if a Control
Change is followed within two years by a Material Change, together with amounts
payable in connection with any other arrangements maintained by the Company (the
"Change in Control Payments"), are subject to the tax imposed by Section 4999 of
the Tax Code (the "Excise Tax"). In that event, the Company will pay to Mr.
Strudler or Mr. Heimbinder, as applicable, an additional lump sum cash amount
such that the net amount retained by him after deduction of any Excise Tax and
any tax and Excise Tax on the gross up will equal the amount of the Change in
Control Payments. Pursuant to the 2000 Amendments, the Company agreed to
indemnify each of Messrs. Strudler and Heimbinder for any out-of-pocket costs
attributable to the filing of any refund or other claim.
A Control Change occurs under the following circumstances: (i) a report on
Schedule 13D is filed pursuant to the Securities Exchange Act of 1934,
indicating that any person other than the Company or a Company employee benefit
plan has become a beneficial owner, directly or indirectly, of 15% or more of
the combined voting power of the then-outstanding securities of the Company,
(ii) the purchase by any person of securities pursuant to a tender offer or
exchange offer to acquire any shares of the Company's common stock (or
securities convertible into such stock), if after the consummation of the offer,
such person would be the beneficial owner, directly or indirectly, of 15% or
more of the combined voting power of the then-outstanding securities of the
Company, (iii) a consolidation or merger of the Company, approved by the
Company's stockholders, (A) in which the Company is not the continuing or
surviving corporation, (B) pursuant to which
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<PAGE> 52
shares of the Company's common stock would be converted into cash, securities or
other property or (C) with a corporation which prior to such consolidation or
merger owned 15% or more of the cumulative voting power of the then-outstanding
securities of the Company, (iv) any sale, lease, exchange or other transfer of
all or substantially all of the assets of the Company, approved by the Company's
stockholders, or (v) a change of a majority of the members of the Board of
Directors of the Company within a 12-month period, unless the election or
nomination for election by the Company's stockholders of each new director
during such 12-month period was approved by a vote of two-thirds of the
directors then still in office who were on the Board of Directors of the Company
at the beginning of such 12-month period.
CERTAIN OTHER CHANGE IN CONTROL ARRANGEMENTS
On February 11, 1997, the Compensation Committee awarded options to
purchase 200,000 shares of the Company's common stock to each of Messrs.
Strudler and Heimbinder. Fifty percent of the options become exercisable on June
21, 2000 and the remaining options become exercisable on June 21, 2001. If (i)
Messrs. Strudler or Heimbinder's employment with the Company is terminated by
the Company for any reason other than (A) for cause (as defined in the
Employment Agreements) or (B) death or disability, (ii) there has been a
Material Change (as defined above) or (iii) a Control Change (as defined above)
occurs, then, among other things, (1) the options and any other options already
held by Messrs. Strudler or Heimbinder vest and become immediately exercisable,
whether or not previously vested and exercisable and (2) any shares of the
Company's common stock subject to restrictions already owned by Messrs. Strudler
and Heimbinder will immediately vest and the restrictions will be of no further
force.
AMENDED AND RESTATED KEY EMPLOYEES' SEVERANCE PAY PLAN
The Board of Directors of the Company adopted the U.S. Home Corporation Key
Employees' Severance Pay Plan (the "Severance Plan") on December 6, 1996, which
was amended and restated on April 22, 1998. The purpose of the Severance Plan is
to encourage continuity of employment by key employees by providing them with an
incentive to remain in the employ of the Company despite the potential for a
change of control of the Company. The executive officers of the Company (other
than Messrs. Strudler and Heimbinder) and the presidents of operations of the
Company are participants in the Severance Plan. Under the terms of the Severance
Plan, a participant whose employment with the Company is terminated, whether
voluntarily or involuntarily other than for Cause (as defined below), within one
(1) year after the occurrence of a Change of Control (as defined below) will be
entitled to (i) receive an amount equal to the greater of (x) 12 months of such
participant's base salary plus any bonuses received by the participant for the
immediately preceding incentive year or (y) one month of such participant's base
salary for each full year during which such participant was employed by the
Company or its subsidiaries and (ii) continue to participate in each of the
Company's employee benefit plans, policies or arrangements which provide
insurance and medical benefits, on the same basis as the Company's other
executive officers, for one year after the date of termination of employment. A
participant whose employment with the Company is terminated by the Company other
than for Cause or whose employment is Constructively Terminated (as defined
below) within two years, but more than one (1) year, following a Change of
Control will be entitled to (i) receive an amount equal to the greater of (a) 12
months of such participant's base salary or (b) one month of such participant's
base salary for each full year during which such participant was employed by the
Company or its subsidiaries and (ii) continue to participate in each of the
Company's employee benefit plans, policies or arrangements which provide
insurance and medical benefits, on the same basis as the Company's other
executive offices, for one year after the date of termination of employment. The
cash benefits under the Severance Plan described above are to be paid to a
participant in a single lump sum in cash as soon as practicable (but in no event
later than 30 days) after the participant's termination of employment.
Under the Severance Plan, "Constructively Terminated" means a (i) reduction
in an amount equal to or greater than 15% of a participant's base salary, (ii)
material reduction in a participant's job function, duties or responsibilities
or (iii) required relocation of a participant of more than 50 miles from such
participant's current job location; provided, however, that the employment with
the Company or its subsidiaries of a president of operations who is a
participant will not be deemed to be Constructively Terminated in the event
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<PAGE> 53
he or she is required to be a division chairman or division president with the
Company or its subsidiaries and has job functions, duties or responsibilities of
a division chairman or division president and/or is required to relocate in
connection with such change in position; provided further, that the employment
of a participant will not be deemed Constructively Terminated unless such
participant actually terminates his or her employment with the Company within 60
days after the occurrence of an event specified in clauses (i), (ii) or (iii)
above.
Under the Severance Plan, "Cause" means (i) a participant's continuing
willful failure to perform his or her duties (other than as a result of total or
partial incapacity due to physical or mental illness), (ii) gross negligence or
malfeasance by a participant in the performance of his or her duties, (iii) an
act or acts on the part of a participant constituting a felony under the laws of
the United States, or any state thereof, which results or was intended to result
directly or indirectly in gain or personal enrichment by such participant at the
expense of the Company or its subsidiaries or (iv) breach of any of the
provisions of the Severance Plan pertaining to confidentiality and competitive
activities.
Under the Severance Plan, "Change of Control" means any of the following:
(i) a report on Schedule 13D is filed pursuant to Section 13(d) of the Exchange
Act, disclosing that any person, other than the Company (or one of its
subsidiaries) or any employee benefit plan sponsored by the Company (or one of
its subsidiaries), is the beneficial owner, directly or indirectly, of 50% or
more of the combined voting power of the then-outstanding equity of the Company;
(ii) any transaction or a series of related transactions (as a result of a
tender offer, merger, consolidation or otherwise whether or not the Company is
the continuing or surviving entity) that results in, or is connection with, any
person, other than the Company (or one of its subsidiaries) or any employee
benefit plan sponsored by the Company (or one of its subsidiaries), acquiring
beneficial ownership, directly or indirectly, of 50% or more of the combined
voting power of the then-outstanding equity of the Company or of any person that
possesses beneficial ownership, directly or indirectly, or 50% or more of the
combined voting power of the then-outstanding equity of the Company; (iii) the
sale, lease, exchange or other transfer of all or substantially all of the
assets of the Company to any person in one transaction or a series of related
transactions; provided, that a transaction where the holders of all classes of
the then-outstanding equity of the Company immediately prior to such transaction
own, directly or indirectly, 50% or more of the aggregate voting power of all
classes of equity of such person immediately after such transaction will not be
a Change of Control under this clause (iii); (iv) the liquidation or dissolution
of the Company; provided, that a liquidation or dissolution of the Company which
is part of a transaction or series of transactions that does not constitute a
Change of Control under the "provided" clause of clause (iii) above will not
constitute a Change of Control under this clause (iv); or (v) a change of a
majority of the members of the Board of Directors of the Company within a
12-month period, unless the election or nomination for election by the
stockholders of the Company or each new director during such 12-month was
approved by a vote of two-thirds of the directors then still in office who were
on the Board of Directors of the Company at the beginning of such 12-month
period.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The members of the Compensation Committee during the year ended December
31, 1999 were Messrs. Gerard, Hanau, McKee and Sight. No such person was an
officer or employee of the Company during the year ended December 31, 1999 or
was formerly an officer of the Company.
DIRECTOR COMPENSATION
Directors, other than those who are officers of the Company, receive the
following cash compensation: membership on the Company's Board of
Directors -- $26,000 per annum; each committee membership -- $1,600 per annum;
each committee chairmanship -- $1,600 per annum; attendance at each Board of
Directors and committee meeting -- a per diem fee of $1,000. Directors who are
officers of the Company receive no compensation for their services as directors.
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<PAGE> 54
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLANS
Under the Director Plans, nondiscretionary grants of options are made to
non-employee members of the Board. Each person who becomes a non-employee
director of the Company is granted an option to acquire 5,000 shares of the
Company's common stock at the time such person first becomes a non-employee
director of the Company. On the date of each annual meeting or special meeting
in lieu of annual meeting of the Company's stockholders, each person who
continues to serve as a non-employee director of the Company immediately after
such meeting shall be granted options to acquire 1,000 shares of the Company's
common stock; provided, that he or she has served as a non-employee director for
at least six months prior to such meeting.
Under the Director Plans, the non-employee directors of the Company were
each granted an option to acquire 1,000 shares of the Company's common stock
immediately following the Company's 1999 annual meeting of stockholders at an
exercise price of $31.70 per share.
AMENDED AND RESTATED RETIREMENT PLAN FOR NON-EMPLOYEE DIRECTORS
Prior to April 23, 1997, non-employee directors were entitled to
participate in the Company's Retirement Plan for Non-Employee Directors under
which a non-employee director would receive a retirement benefit for the number
of full months of service as a director from January 1, 1985 to the month prior
to retirement. The retirement benefit is an amount equal to the annual cash
retained payable to non-employee directors at the time of such directors'
retirement, payable in equal monthly installments.
On April 23, 1997, the Company's Board of Directors approved the Amended
and Restated Retirement Plan for Non-Employee Directors (the "Directors'
Retirement Plan"), which ceased further accruals under the Directors' Retirement
Plan and gave such directors who were then participating in the Directors'
Retirement Plan the right to (i) terminate participation in and surrender any
and all rights to benefits under the Directors' Retirement Plan in exchange for
the issuance on January 2, 1998 of a number of shares of the Company's common
stock determined by dividing the affected participants' accrued retirement
benefits under the Directors' Retirement Plan as of April 23, 1997 by $24.625
(the closing price of the Company's common stock on April 23, 1997), or (ii)
continue participation in the Directors' Retirement Plan with accrued retirement
benefits through April 23, 1997 but without any further accruals thereafter.
All of the non-employee directors elected to terminate participation in the
Directors' Retirement Plan except for Mr. Hopkins. Mr. Hopkins will continue to
participate in the Directors' Retirement Plan and shall retain his retirement
benefits accrued though April 23, 1997 but will not be entitled to any further
accruals. On January 2, 1998, in accordance with such election, shares of the
Company's common stock were issued as follows: Messrs. Adams, Gerard, McDonald,
Poole and Sight -- 3,717; Mr. Hanau -- 1,118; Mr. McKee -- 2,499; and Mr.
Ripault -- 5,910.
NON-EMPLOYEE DIRECTOR STOCK PLAN
Under the Director Stock Plan, on the date of election as a director at
each annual meeting, each participant shall receive as additional compensation
for service as a director for the succeeding year the number of shares of the
Company's common stock equal to the annual cash retainer payable to each
director for such year, divided by the closing price of the common stock on the
NYSE on the date of such election.
Participants elected or appointed other than at an annual meeting of the
Company's stockholders will be issued a pro rata number of shares of the
Company's common stock based upon the number of months to be served in the year
between annual meetings. Participants who voluntary resign or become employed by
the Company prior to the April 15th which immediately follows the issuance of
such shares will forfeit all such shares. Participants who otherwise cease to be
directors, including the death or disability of such participants, will forfeit
a pro rata number of shares of the Company's common stock based upon the number
of months served in the year between annual meetings. Participants may not
transfer, sell, pledge, assign, encumber or otherwise dispose of shares pursuant
to the Director Stock Plan until the April 15th which immediately follows the
issuance of such shares, or the date on which participants cease to be
directors.
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Shares of the Company's common stock will be issued in the name of the
participant and the participant will be entitled to all rights of stockholder of
the Company, including the right to vote the shares and to receive any declared
dividends subject to the transfer and forfeiture provisions described in the
preceding paragraph.
On April 21, 1999, in accordance with the Director Stock Plan, 762 shares
of the Company's common stock were issued to each director.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the Company's
outstanding shares of common stock beneficially owned as of February 28, 2000,
by (i) each director of the Company, (ii) the Chairman and Co-Chief Executive
Officer and each of the four most highly compensated executive officers of the
Company (other than the Chairman and Co-Chief Executive Officer), (iii) all
directors and executive officers of the Company as a group and (iv) each person
who owns more than five percent of the common stock. All information with
respect to beneficial ownership has been furnished to the Company by the parties
below.
<TABLE>
<CAPTION>
COMMON STOCK
----------------------------
NUMBER OF SHARES PERCENT
BENEFICIAL OWNERS(11) (1)(2)(3)(4) OF CLASS
--------------------- ---------------- --------
<S> <C> <C>
Glen Adams.................................................. 17,085 *
Steven L. Gerard............................................ 17,085 *
Kenneth J. Hanau, Jr. ...................................... 17,276 *
Isaac Heimbinder............................................ 302,273(5) 2.27%
Malcolm T. Hopkins.......................................... 15,368 *
Charles A. McKee............................................ 34,692(6) *
George A. Poole, Jr. ....................................... 24,085 *
Herve Ripault............................................... 22,643 *
James W. Sight.............................................. 14,585 *
Robert J. Strudler.......................................... 296,983(7) 2.23%
Gary L. Frueh............................................... 44,162 *
Craig M. Johnson............................................ 59,365 *
Chester P. Sadowski......................................... 46,248 *
All directors and executive officers of the Company as a
group (17 persons)........................................ 1,043,726 7.85%
FMR Corp.
82 Devonshire Street
Boston, MA 02109(8)....................................... 1,142,545 8.59%
Greenhaven Associates, Inc.
Three Manhattanville Road
Purchase, NY 10577(9)..................................... 1,223,945 9.21%
Wellington Management Company, LLP
75 State Street
Boston, MA 02109(10)...................................... 1,168,495 8.79%
</TABLE>
- ---------------
* Less than 1%.
(1) Includes options which are fully exercisable pursuant to the Company's
Employees' Stock Option Plans for the following number of shares of the
Company's common stock: Mr. Heimbinder -- 250,000; Mr. Strudler -- 250,000;
Mr. Johnson -- 29,001; Mr. Sadowski -- 24,000; Mr. Frueh -- 17,000; and all
executive officers of the Company as a group -- 616,795.
(2) Includes shares of the Company's common stock issued in connection with the
Employee Stock Plan. Pursuant to the Employee Stock Plan, 25% of certain
incentive compensation is paid in the Company's common stock, one-half of
which vests immediately and the remainder of which vests two years after
the end of the incentive compensation year. The number of shares of the
Company's common stock issued pursuant to the Employee Stock Plan for
incentive compensation for all executive officers of the
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<PAGE> 56
Company as a group was 245 for 1999 and 505 for 1998 with an approximately
equal number of shares of the Company's common stock credited to all
executive officers of the Company as a group, for 1999 and 1998 that have
not yet vested under the Employee Stock Plan.
(3) Includes shares of the Company's common stock issued but not yet vested in
connection with the Restricted Stock Plan. See "Executive
Compensation -- Summary Compensation Table." The number of shares of the
Company's common stock issued pursuant to the Restricted Stock Plan are as
follows: Messrs. Heimbinder, Strudler, Johnson, Frueh and Sadowski each
received 5,000 shares; and all executive officers of the Company as a group
received 105,000 shares.
(4) Includes fully exercisable options granted pursuant to the Directors' Plan
to acquire the following number of shares of the Company's common stock:
Mr. Adams -- 11,000; Mr. Gerard -- 11,000; Mr. Hanau -- 13,500; Mr.
Hopkins -- 11,000; Mr. McKee -- 13,500; Mr. Poole -- 11,000; Mr.
Ripault -- 13,500; and Mr. Sight -- 11,000.
(5) Excludes 8,196 shares of the Company's common stock held in trust for Mr.
Heimbinder's children and 2,500 shares of the Company's common stock held
in a family foundation. Mr. Heimbinder disclaims beneficial ownership of
such shares.
(6) Excludes 775 shares of the Company's common stock owned by Mr. McKee's
wife. Mr. McKee disclaims beneficial ownership of such shares.
(7) Excludes 100 shares of the Company's common stock held in trust for Mr.
Strudler's son. Mr. Strudler disclaims beneficial ownership of such shares.
(8) FMR Corp. beneficially owns, through its wholly-owned subsidiary, Fidelity
Management & Research Company ("Fidelity"), as an investment advisor to
various investment companies (the "Funds"), 1,142,545 shares (8.59% of the
Company's common stock). Of the amounts held by FMR Corp., 911,745 shares
of the Company's common stock (6.86% of the total outstanding amount of the
Company's common stock) are also beneficially owned by Fidelity Low-Priced
Stock Fund, a fund for which Fidelity serves as investment advisor. Edward
C. Johnson 3d ("Johnson"), as chairman and FMR through its control of
Fidelity, and the funds each has sole power to dispose of the 1,142,545
shares owned by the Funds. Neither Johnson nor FMR has the sole power to
vote or direct the voting of the shares owned directly by the Funds, which
power resides with the Funds' Boards of Trustees. Fidelity carries out the
voting of the shares under written guidelines established by the Funds'
Boards of Trustees. Fidelity Management Trust Company ("FMTC"), a
wholly-owned subsidiary of FMR, is the beneficial owner of 2,300 shares as
a result of its serving as investment manager of institutional accounts.
Johnson and FMR, through its control of FMTC, each has sole voting and
dispositive power over 2,300 shares owned by the institutional accounts.
(9) Greenhaven Associates, Inc. ("Greenhaven") beneficially owns, in its
capacity as an investment advisor, shares which are owned of record by
clients of Greenhaven. Those clients have the right to receive, or the
power to direct the receipt of, dividends from, or the proceeds from the
sale of, such securities. No such client is known to have such right or
power with respect to more than five percent of the Company's common stock.
Greenhaven has the sole power to vote to the extent of 287,500 shares.
(10) Wellington Management Company, LLP ("WMC") beneficially owns, in its
capacity as an investment advisor, shares which are owned of record by
clients of WMC. Those clients have the right to receive, or the power to
direct the receipt of, dividends from, or the proceeds from the sale of,
such securities. No such client is known to have such right or power with
respect to more than five percent of the Company's common stock except for
Vanguard Windsor Fund which has sole power to vote or to direct the vote of
1,168,495 shares of the Company's common stock and shared power to dispose
or direct the disposition of 1,168,495 shares of the Company's common
stock.
(11) In February 2000, Lennar entered into a definitive agreement to acquire the
Company through a merger in which U.S. Home stockholders will receive a
total of approximately $476 million, of which approximately one-half will
be in cash and the remainder will be in common stock of Lennar (with the
common stock portion, and therefore the total purchase price, subject to
adjustment if the price of Lennar's stock is greater or lower than
specified levels) in exchange for their stock. U.S. Home will
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<PAGE> 57
become a wholly-owned subsidiary of Lennar. At the time the acquisition
takes place, the Company's debt is expected to include bank debt and
approximately $525 million of publicly-held debt. The holders of the
publicly-held debt have the right to require U.S. Home to redeem such debt
within 90 days of the completion of the transaction, and the lenders under
the Company's Credit Facility can accelerate the debt outstanding
thereunder. In addition, the bank debt of certain of the Company's
subsidiaries may become due upon consummation of the merger. Lennar has
informed the Company that it has access to the resources required to close
the transaction and, if necessary, refinance U.S. Home's debt. The
transaction is subject to approval by the stockholders of both companies,
as well as expiration or termination of any applicable waiting periods
under antitrust laws and other regulatory matters and other customary
closing conditions. If the necessary stockholder and regulatory approvals
are obtained and the other closing conditions are satisfied, the Company
expects the transaction to close by the end of May 2000. The definitive
merger agreement has been filed as an exhibit U.S. Home's current report on
Form 8-K, which the Company filed with the Securities and Exchange
Commission on February 28, 2000.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) 1. and 2. The following financial statements and financial statement
schedules are filed as part of this Report:
See Index to Financial Statements -- Item 8.
(a) 3. Exhibits
<TABLE>
<C> <S>
3.1 -- Restated Certificate of Incorporation of U.S. Home
Corporation effective on June 21, 1993. Incorporated by
reference from exhibit 3.1 to Registration Statement on
Form S-3 of U.S. Home Corporation (Registration No.
33-68966).
3.1(i) -- Certificate of Amendment of Restated Certificate of
Incorporation as filed with the State of Delaware on May
13, 1994. Incorporated by reference from exhibit 3.1 to
U.S. Home Corporation's Quarterly Report on Form 10-Q for
the period ended June 30, 1994.
3.1(ii) -- Certificate of Retirement, dated as of September 11,
1995. Incorporated by reference from exhibit 3.1 to U.S.
Home Corporation's Quarterly Report on Form 10-Q for the
period ended September 30, 1996.
3.1(iii) -- Certificate of Retirement, dated as of July 31, 1996.
Incorporated by reference from exhibit 3.2 to U.S. Home
Corporation's Quarterly Report on Form 10-Q for the
period ended September 30, 1996.
3.1(iv) -- Certificate of Retirement, dated as of June 16, 1997.
Incorporated by reference from exhibit 3.1 to U.S. Home
Corporation's Quarterly Report on Form 10-Q for the
period ended September 30, 1997.
3.2 -- Certificate of Designation, Preferences and Rights of
Series A Junior Non-Cumulative Preferred Stock as filed
with the State of Delaware on December 2, 1996.
Incorporated by reference from exhibit 3.2 to U.S. Home
Corporation's Annual Report on Form 10-K for the period
ended December 31, 1996.
3.3 -- Amended and Restated By-Laws of U.S. Home Corporation,
dated as of October 15, 1998. Incorporated by reference
from exhibit 3.1 to U.S. Home Corporation's Quarterly
Report on Form 10-Q for the period ended September 30,
1998.
10.1 -- Fourth Amended and Restated Credit Agreement dated as of
February 14, 2000, between U.S. Home Corporation and Bank
One, N.A., as Administrative Agent, Guaranty Federal
Bank, F.S.B., as Syndication Agent, Credit Lyonnais New
York Branch, as Documentation Agent, and Bank One Capital
Markets, Inc., as Lead Arranger and Sole Bookrunner.
10.2 -- Senior Indenture, dated as of February 16, 1996, by and
between U.S. Home Corporation and IBJ Schroder Bank &
Trust Company, as Trustee, relating to U.S. Home
Corporation's 7.95% Senior Notes due 2001. Incorporated
by reference from exhibit 4.1 to U.S. Home Corporation's
Quarterly Report on Form 10-Q for the period ended March
31, 1996.
10.2(i) -- Officers' Certificate dated February 16, 1996,
establishing the form and terms of the $75 million
aggregate principal amount of 7.95% Senior Notes due
2001. Incorporated by reference from exhibit 4.2 to U.S.
Home Corporation's Quarterly Report on Form 10-Q for the
period ended March 31, 1996.
</TABLE>
57
<PAGE> 59
<TABLE>
<C> <S>
10.3 -- Senior Indenture, dated as of August 28, 1997, by and
between U.S. Home Corporation and IBJ Schroder Bank &
Trust Company, as trustee, relating to U.S. Home
Corporation's 8.25% Senior Notes due 2004 and 7.75%
Senior Notes due 2005. Incorporated by reference from
exhibit 10.2 to U.S. Home Corporation's Quarterly Report
on Form 10-Q for the period ended September 30, 1997.
10.3(i) -- Officer's Certificate establishing the form and terms of
the 8.25% Senior Notes due 2004. Incorporated by
reference from exhibit 4.2 to U.S. Home Corporation's
Current Report on Form 8-K dated January 15, 1998.
10.3(ii) -- Officers' Certificate establishing the form and terms of
the 7.75% Senior Notes due 2005. Incorporated by
reference from exhibit 10.6 to U.S. Home Corporation's
Annual Report on Form 10-K for the year ended December
31, 1997.
10.4 -- Senior Subordinated Indenture, dated as of August 28,
1997, by and between U.S. Home Corporation and IBJ
Schroder Bank & Trust Company, as trustee, relating to
U.S. Home Corporation's 8.88% Senior Subordinated Notes
due 2007. Incorporated by reference from exhibit 10.3 to
U.S. Home Corporation's Quarterly Report on Form 10-Q for
the period ended September 30, 1997.
10.4(i) -- Officer's Certificate establishing the form and terms of
the 8.88% Senior Subordinated Notes due 2007.
Incorporated by reference from exhibit 4.3 to U.S. Home
Corporation's Current Report on Form 8-K dated January
15, 1998.
10.5 -- Senior Subordinated Indenture, dated as of February 19,
1999, by and between U.S. Home Corporation and IBJ
Whitehall Bank & Trust Company, as trustee, relating to
U.S. Home Corporation's 8.875% Senior Subordinated Notes
due 2009. Incorporated by reference from exhibit 10.1 to
U.S. Home Corporation's Quarterly Report on Form 10-Q for
the period ended March 31, 1999.
10.5(i) -- Officer's Certificate establishing the form and terms of
the 8.875% Senior Subordinated Notes due 2009.
Incorporated by reference from exhibit 10.2 to U.S. Home
Corporation's Quality Report on Form 10-Q for the period
ended March 31, 1999.
10.6 -- Rights Agreement, dated as of November 7, 1996, between
U.S. Home Corporation and First Chicago Trust Company of
New York, and exhibits thereto. Incorporated by reference
from exhibit 4 to U.S. Home Corporation's Current Report
on Form 8-K/A Amendment No. 1 filed November 18, 1996.
10.7 -- U.S. Home Corporation 1997 Employees' Stock Option Plan.
Incorporated by reference from exhibit 10.7 to U.S. Home
Corporation's Annual Report on Form 10-K for the year
ended December 31, 1996.
10.8 -- U.S. Home Corporation Amended and Restated 1996
Employees' Stock Option Plan. Incorporated by reference
from exhibit 10.8 to U.S. Home Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996.
10.9 -- U.S. Home Corporation Amended and Restated 1993
Employees' Stock Option Plan. Incorporated by reference
from exhibit 10.9 to U.S. Home Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996.
10.10 -- U.S. Home Corporation Second Amended and Restated
Employee Stock Payment Plan. Incorporated by reference
from exhibit 10.1 to U.S. Home Corporation's Quarterly
Report on Form 10-Q for the period ended June 30, 1998.
10.11 -- U.S. Home Corporation Third Amended and Restated
Corporate Officers and President of Operations Restricted
Stock Plan.
10.12 -- U.S. Home Corporation 1998 Key Employee Restricted Stock
Plan. Incorporated by reference from exhibit 10.13 to
U.S. Home Corporation's annual report on Form 10-K for
the year ended December 31, 1998.
</TABLE>
58
<PAGE> 60
<TABLE>
<C> <S>
10.13 -- U.S. Home Corporation Amended and Restated Non-Employee
Directors' Stock Option Plan. Incorporated by reference
from exhibit 10.10 to U.S. Home Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996.
10.14 -- U.S. Home Corporation Non-Employee Director Stock Plan.
Incorporated by reference from exhibit 10.15 to U.S. Home
Corporation's Form 10-K for the year ended December 31,
1997.
10.15 -- U.S. Home Corporation 1998 Non-Employee Directors' Stock
Option Plan. Incorporated by reference from exhibit 10.16
to U.S. Home Corporation's Annual Report on Form 10-K for
the year ended December 31, 1997.
10.16 -- U.S. Home Corporation Corporate Officers Incentive
Compensation Program for the Incentive Period January 1,
2000 to December 31, 2000.
10.17 -- U.S. Home Corporation Corporate Officers Incentive
Compensation Program for the Incentive Period January 1,
1999 to December 31, 1999. Incorporated by reference from
exhibit 10.12 to U.S. Home Corporation's annual report on
Form 10-K for the year ended December 31, 1998.
10.18 -- U.S. Home Corporation Amended and Restated Key Employees'
Severance Pay Plan. Incorporated by reference from
exhibit 10.12 to U.S. Home Corporation's annual report on
Form 10-K for the year ended December 31, 1998.
10.19 -- U.S. Home Corporation Amended and Restated Retirement
Plan for Non-Employee Directors. Incorporated by
reference from exhibit 10.6 to U.S. Home Corporation's
Quarterly Report on Form 10-Q for the period ended
September 30, 1997.
10.20 -- Second Amended and Restated Employment and Consulting
Agreement dated as of February 9, 1999, between U.S. Home
Corporation and Robert J. Strudler. Incorporated by
reference from exhibit 10.1 to U.S. Home Corporation's
Current Report on Form 8-K dated February 16, 1999.
10.21 -- First Amendment to the Second Amended and Restated
Employment and Consulting Agreement, dated as of February
9, 2000, between U.S. Home Corporation and Robert J.
Strudler.
10.22 -- Second Amended and Restated Employment and Consulting
Agreement dated as of February 9, 1999, between U.S. Home
Corporation and Isaac Heimbinder. Incorporated by
reference from exhibit 10.2 to U.S. Home Corporation's
Current Report on Form 8-K dated February 16, 1999.
10.23 -- First Amendment to the Second Amended and Restated
Employment and Consulting Agreement, dated as of February
9, 2000, between U.S. Home Corporation and Isaac
Heimbinder.
10.24 -- Registration Rights Agreement dated as of June 21, 1993,
between U.S. Home Corporation and Loomis, Sayles &
Company Incorporated, on behalf of certain holders of the
common stock of U.S. Home Corporation. Incorporated by
reference from exhibit 10.10 to Registration Statement on
Form S-3 of U.S. Home Corporation (Registration No.
33-68966).
10.25 -- Trust Agreement, dated December 18, 1986, between U.S.
Home Corporation, as Grantor, and Kenneth J. Hanau, Jr.,
as Trustee, with respect to retirement benefits for Isaac
Heimbinder. Incorporated by reference from exhibit 10.25
to U.S. Home Corporation's Annual Report on Form 10-K for
the year ended December 31, 1986.
10.26 -- Trust Agreement, dated December 18, 1986, between U.S.
Home Corporation, as Grantor, and Kenneth J. Hanau, Jr.,
as Trustee, with respect to retirement benefits for
Robert J. Strudler. Incorporated by reference from
exhibit 10.26 to U.S. Home Corporation's Annual Report on
Form 10-K for the year ended December 31, 1986.
</TABLE>
59
<PAGE> 61
<TABLE>
<C> <S>
10.27 -- Letter, dated as of March 20, 1990, between U.S. Home
Corporation and William E. Reichard, as Successor
Trustee, with respect to Trust Agreements dated December
18, 1986 between U.S. Home Corporation, as Grantor,
Kenneth J. Hanau, Jr., as Trustee, with respect to
retirement benefits for Robert J. Strudler and Isaac
Heimbinder. Incorporated by reference from exhibit 10.19
to U.S. Home Corporation's Annual Report on Form 10-K for
the year ended December 31, 1992.
10.28 -- Warehousing Credit and Security Agreement (single-family
mortgage loans) dated as of October 1, 1999, between U.S.
Home Mortgage Corporation and Residential Funding
Corporation. Incorporated by reference from exhibit 10.1
to U.S. Home Corporation's Quarterly Report on Form 10-Q
for the period ended September 30, 1999.
10.29 -- U.S. Home Corporation Amortizing Incentive Plan.
Incorporated by reference from exhibit 4.2 to
Registration Statement on Form S-8 of U.S. Home
Corporation (Registration No. 33-64712).
10.30 -- Form of Indemnification Agreement for directors and
executive officers. Incorporated by reference from
exhibit 10.15 to Amendment No. 2 to Registration
Statement on Form S-1 of U.S. Home Corporation
(Registration No. 33-60638).
10.31 -- Plan and Agreement of Merger, dated as of February 16,
2000, among Lennar Corporation, U.S. Home Corporation and
LEN Acquisition Corporation. Incorporated by reference
from exhibit 99.1 to U.S. Home Corporation's Current
Report on Form 8-K dated February 28, 2000.
10.32 -- Voting Agreement, dated as of February 16, 2000, by and
among U.S. Home Corporation and certain stockholders of
Lennar Corporation. Incorporated by reference from
exhibit 99.2 to U.S. Home Corporation's Current Report on
Form 8-K dated February 28, 2000.
10.33 -- Amendment to Rights Agreement, dated February 16, 2000,
between U.S. Home Corporation and First Chicago Trust
Company of New York, as rights agent. Incorporated by
reference from exhibit 99.3 to U.S. Home Corporation's
Current Report on Form 8-K dated February 28, 2000.
21 -- Subsidiaries of U.S. Home Corporation
23 -- Consent of Independent Public Accountants
27 -- Financial Data Schedule
</TABLE>
(b) Report on Form 8-K
No Current Report on Form 8-K was filed by the Company during October,
November or December 1999.
60
<PAGE> 62
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Date: March 15, 2000 U.S. HOME CORPORATION
By: /s/ ISAAC HEIMBINDER
----------------------------------
Isaac Heimbinder
President, Co-Chief Executive
Officer
and Chief Operating Officer
By: /s/ CHESTER P. SADOWSKI
----------------------------------
Chester P. Sadowski
Senior Vice
President -- Controller and
Chief Accounting Officer
(principal accounting officer)
By: /s/ THOMAS A. NAPOLI
----------------------------------
Thomas A. Napoli
Vice President -- Corporate
Finance and Treasurer (principal
financial officer)
61
<PAGE> 63
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ROBERT J. STRUDLER Director, Chairman and March 15, 2000
- ----------------------------------------------------- Co-Chief Executive Officer
Robert J. Strudler (principal executive officer)
/s/ ISAAC HEIMBINDER Director, President, Co-Chief March 15, 2000
- ----------------------------------------------------- Executive Officer and Chief
Isaac Heimbinder Operating Officer
/s/ GLEN ADAMS Director March 15, 2000
- -----------------------------------------------------
Glen Adams
/s/ STEVEN L. GERARD Director March 15, 2000
- -----------------------------------------------------
Steven L. Gerard
Director
- -----------------------------------------------------
Kenneth J. Hanau, Jr.
/s/ MALCOLM T. HOPKINS Director March 15, 2000
- -----------------------------------------------------
Malcolm T. Hopkins
/s/ CHARLES A. MCKEE Director March 15, 2000
- -----------------------------------------------------
Charles A. McKee
/s/ GEORGE A. POOLE, JR. Director March 15, 2000
- -----------------------------------------------------
George A. Poole, Jr.
/s/ HERVE RIPAULT Director March 15, 2000
- -----------------------------------------------------
Herve Ripault
/s/ JAMES W. SIGHT Director March 15, 2000
- -----------------------------------------------------
James W. Sight
</TABLE>
62
<PAGE> 64
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
3.1 -- Restated Certificate of Incorporation of U.S. Home
Corporation effective on June 21, 1993. Incorporated by
reference from exhibit 3.1 to Registration Statement on
Form S-3 of U.S. Home Corporation (Registration No.
33-68966).
3.1(i) -- Certificate of Amendment of Restated Certificate of
Incorporation as filed with the State of Delaware on May
13, 1994. Incorporated by reference from exhibit 3.1 to
U.S. Home Corporation's Quarterly Report on Form 10-Q for
the period ended June 30, 1994.
3.1(ii) -- Certificate of Retirement, dated as of September 11,
1995. Incorporated by reference from exhibit 3.1 to U.S.
Home Corporation's Quarterly Report on Form 10-Q for the
period ended September 30, 1996.
3.1(iii) -- Certificate of Retirement, dated as of July 31, 1996.
Incorporated by reference from exhibit 3.2 to U.S. Home
Corporation's Quarterly Report on Form 10-Q for the
period ended September 30, 1996.
3.1(iv) -- Certificate of Retirement, dated as of June 16, 1997.
Incorporated by reference from exhibit 3.1 to U.S. Home
Corporation's Quarterly Report on Form 10-Q for the
period ended September 30, 1997.
3.2 -- Certificate of Designation, Preferences and Rights of
Series A Junior Non-Cumulative Preferred Stock as filed
with the State of Delaware on December 2, 1996.
Incorporated by reference from exhibit 3.2 to U.S. Home
Corporation's Annual Report on Form 10-K for the period
ended December 31, 1996.
3.3 -- Amended and Restated By-Laws of U.S. Home Corporation,
dated as of October 15, 1998. Incorporated by reference
from exhibit 3.1 to U.S. Home Corporation's Quarterly
Report on Form 10-Q for the period ended September 30,
1998.
10.1 -- Fourth Amended and Restated Credit Agreement dated as of
February 14, 2000, between U.S. Home Corporation and Bank
One, N.A., as Administrative Agent, Guaranty Federal
Bank, F.S.B., as Syndication Agent, Credit Lyonnais New
York Branch, as Documentation Agent, and Bank One Capital
Markets, Inc., as Lead Arranger and Sole Bookrunner.
10.2 -- Senior Indenture, dated as of February 16, 1996, by and
between U.S. Home Corporation and IBJ Schroder Bank &
Trust Company, as Trustee, relating to U.S. Home
Corporation's 7.95% Senior Notes due 2001. Incorporated
by reference from exhibit 4.1 to U.S. Home Corporation's
Quarterly Report on Form 10-Q for the period ended March
31, 1996.
10.2(i) -- Officers' Certificate dated February 16, 1996,
establishing the form and terms of the $75 million
aggregate principal amount of 7.95% Senior Notes due
2001. Incorporated by reference from exhibit 4.2 to U.S.
Home Corporation's Quarterly Report on Form 10-Q for the
period ended March 31, 1996.
10.3 -- Senior Indenture, dated as of August 28, 1997, by and
between U.S. Home Corporation and IBJ Schroder Bank &
Trust Company, as trustee, relating to U.S. Home
Corporation's 8.25% Senior Notes due 2004 and 7.75%
Senior Notes due 2005. Incorporated by reference from
exhibit 10.2 to U.S. Home Corporation's Quarterly Report
on Form 10-Q for the period ended September 30, 1997.
10.3(i) -- Officer's Certificate establishing the form and terms of
the 8.25% Senior Notes due 2004. Incorporated by
reference from exhibit 4.2 to U.S. Home Corporation's
Current Report on Form 8-K dated January 15, 1998.
</TABLE>
<PAGE> 65
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
10.3(ii) -- Officers' Certificate establishing the form and terms of
the 7.75% Senior Notes due 2005. Incorporated by
reference from exhibit 10.6 to U.S. Home Corporation's
Annual Report on Form 10-K for the year ended December
31, 1997.
10.4 -- Senior Subordinated Indenture, dated as of August 28,
1997, by and between U.S. Home Corporation and IBJ
Schroder Bank & Trust Company, as trustee, relating to
U.S. Home Corporation's 8.88% Senior Subordinated Notes
due 2007. Incorporated by reference from exhibit 10.3 to
U.S. Home Corporation's Quarterly Report on Form 10-Q for
the period ended September 30, 1997.
10.4(i) -- Officer's Certificate establishing the form and terms of
the 8.88% Senior Subordinated Notes due 2007.
Incorporated by reference from exhibit 4.3 to U.S. Home
Corporation's Current Report on Form 8-K dated January
15, 1998.
10.5 -- Senior Subordinated Indenture, dated as of February 19,
1999, by and between U.S. Home Corporation and IBJ
Whitehall Bank & Trust Company, as trustee, relating to
U.S. Home Corporation's 8.875% Senior Subordinated Notes
due 2009. Incorporated by reference from exhibit 10.1 to
U.S. Home Corporation's Quarterly Report on Form 10-Q for
the period ended March 31, 1999.
10.5(i) -- Officer's Certificate establishing the form and terms of
the 8.875% Senior Subordinated Notes due 2009.
Incorporated by reference from exhibit 10.2 to U.S. Home
Corporation's Quality Report on Form 10-Q for the period
ended March 31, 1999.
10.6 -- Rights Agreement, dated as of November 7, 1996, between
U.S. Home Corporation and First Chicago Trust Company of
New York, and exhibits thereto. Incorporated by reference
from exhibit 4 to U.S. Home Corporation's Current Report
on Form 8-K/A Amendment No. 1 filed November 18, 1996.
10.7 -- U.S. Home Corporation 1997 Employees' Stock Option Plan.
Incorporated by reference from exhibit 10.7 to U.S. Home
Corporation's Annual Report on Form 10-K for the year
ended December 31, 1996.
10.8 -- U.S. Home Corporation Amended and Restated 1996
Employees' Stock Option Plan. Incorporated by reference
from exhibit 10.8 to U.S. Home Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996.
10.9 -- U.S. Home Corporation Amended and Restated 1993
Employees' Stock Option Plan. Incorporated by reference
from exhibit 10.9 to U.S. Home Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996.
10.10 -- U.S. Home Corporation Second Amended and Restated
Employee Stock Payment Plan. Incorporated by reference
from exhibit 10.1 to U.S. Home Corporation's Quarterly
Report on Form 10-Q for the period ended June 30, 1998.
10.11 -- U.S. Home Corporation Third Amended and Restated
Corporate Officers and President of Operations Restricted
Stock Plan.
10.12 -- U.S. Home Corporation 1998 Key Employee Restricted Stock
Plan. Incorporated by reference from exhibit 10.13 to
U.S. Home Corporation's annual report on Form 10-K for
the year ended December 31, 1998.
10.13 -- U.S. Home Corporation Amended and Restated Non-Employee
Directors' Stock Option Plan. Incorporated by reference
from exhibit 10.10 to U.S. Home Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996.
10.14 -- U.S. Home Corporation Non-Employee Director Stock Plan.
Incorporated by reference from exhibit 10.15 to U.S. Home
Corporation's Form 10-K for the year ended December 31,
1997.
</TABLE>
<PAGE> 66
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
10.15 -- U.S. Home Corporation 1998 Non-Employee Directors' Stock
Option Plan. Incorporated by reference from exhibit 10.16
to U.S. Home Corporation's Annual Report on Form 10-K for
the year ended December 31, 1997.
10.16 -- U.S. Home Corporation Corporate Officers Incentive
Compensation Program for the Incentive Period January 1,
2000 to December 31, 2000.
10.17 -- U.S. Home Corporation Corporate Officers Incentive
Compensation Program for the Incentive Period January 1,
1999 to December 31, 1999. Incorporated by reference from
exhibit 10.12 to U.S. Home Corporation's annual report on
Form 10-K for the year ended December 31, 1998.
10.18 -- U.S. Home Corporation Amended and Restated Key Employees'
Severance Pay Plan. Incorporated by reference from
exhibit 10.12 to U.S. Home Corporation's annual report on
Form 10-K for the year ended December 31, 1998.
10.19 -- U.S. Home Corporation Amended and Restated Retirement
Plan for Non-Employee Directors. Incorporated by
reference from exhibit 10.6 to U.S. Home Corporation's
Quarterly Report on Form 10-Q for the period ended
September 30, 1997.
10.20 -- Second Amended and Restated Employment and Consulting
Agreement dated as of February 9, 1999, between U.S. Home
Corporation and Robert J. Strudler. Incorporated by
reference from exhibit 10.1 to U.S. Home Corporation's
Current Report on Form 8-K dated February 16, 1999.
10.21 -- First Amendment to the Second Amended and Restated
Employment and Consulting Agreement, dated as of February
9, 2000, between U.S. Home Corporation and Robert J.
Strudler.
10.22 -- Second Amended and Restated Employment and Consulting
Agreement dated as of February 9, 1999, between U.S. Home
Corporation and Isaac Heimbinder. Incorporated by
reference from exhibit 10.2 to U.S. Home Corporation's
Current Report on Form 8-K dated February 16, 1999.
10.23 -- First Amendment to the Second Amended and Restated
Employment and Consulting Agreement, dated as of February
9, 2000, between U.S. Home Corporation and Isaac
Heimbinder.
10.24 -- Registration Rights Agreement dated as of June 21, 1993,
between U.S. Home Corporation and Loomis, Sayles &
Company Incorporated, on behalf of certain holders of the
common stock of U.S. Home Corporation. Incorporated by
reference from exhibit 10.10 to Registration Statement on
Form S-3 of U.S. Home Corporation (Registration No.
33-68966).
10.25 -- Trust Agreement, dated December 18, 1986, between U.S.
Home Corporation, as Grantor, and Kenneth J. Hanau, Jr.,
as Trustee, with respect to retirement benefits for Isaac
Heimbinder. Incorporated by reference from exhibit 10.25
to U.S. Home Corporation's Annual Report on Form 10-K for
the year ended December 31, 1986.
10.26 -- Trust Agreement, dated December 18, 1986, between U.S.
Home Corporation, as Grantor, and Kenneth J. Hanau, Jr.,
as Trustee, with respect to retirement benefits for
Robert J. Strudler. Incorporated by reference from
exhibit 10.26 to U.S. Home Corporation's Annual Report on
Form 10-K for the year ended December 31, 1986.
</TABLE>
<PAGE> 67
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
10.27 -- Letter, dated as of March 20, 1990, between U.S. Home
Corporation and William E. Reichard, as Successor
Trustee, with respect to Trust Agreements dated December
18, 1986 between U.S. Home Corporation, as Grantor,
Kenneth J. Hanau, Jr., as Trustee, with respect to
retirement benefits for Robert J. Strudler and Isaac
Heimbinder. Incorporated by reference from exhibit 10.19
to U.S. Home Corporation's Annual Report on Form 10-K for
the year ended December 31, 1992.
10.28 -- Warehousing Credit and Security Agreement (single-family
mortgage loans) dated as of October 1, 1999, between U.S.
Home Mortgage Corporation and Residential Funding
Corporation. Incorporated by reference from exhibit 10.1
to U.S. Home Corporation's Quarterly Report on Form 10-Q
for the period ended September 30, 1999.
10.29 -- U.S. Home Corporation Amortizing Incentive Plan.
Incorporated by reference from exhibit 4.2 to
Registration Statement on Form S-8 of U.S. Home
Corporation (Registration No. 33-64712).
10.30 -- Form of Indemnification Agreement for directors and
executive officers. Incorporated by reference from
exhibit 10.15 to Amendment No. 2 to Registration
Statement on Form S-1 of U.S. Home Corporation
(Registration No. 33-60638).
10.31 -- Plan and Agreement of Merger, dated as of February 16,
2000, among Lennar Corporation, U.S. Home Corporation and
LEN Acquisition Corporation. Incorporated by reference
from exhibit 99.1 to U.S. Home Corporation's Current
Report on Form 8-K dated February 28, 2000.
10.32 -- Voting Agreement, dated as of February 16, 2000, by and
among U.S. Home Corporation and certain stockholders of
Lennar Corporation. Incorporated by reference from
exhibit 99.2 to U.S. Home Corporation's Current Report on
Form 8-K dated February 28, 2000.
10.33 -- Amendment to Rights Agreement, dated February 16, 2000,
between U.S. Home Corporation and First Chicago Trust
Company of New York, as rights agent. Incorporated by
reference from exhibit 99.3 to U.S. Home Corporation's
Current Report on Form 8-K dated February 28, 2000.
21 -- Subsidiaries of U.S. Home Corporation
23 -- Consent of Independent Public Accountants
27 -- Financial Data Schedule
</TABLE>
<PAGE> 1
--------------------------------------
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
--------------------------------------
Dated as of February 14, 2000
--------------------------------------
U.S. HOME CORPORATION,
The Lenders Parties Thereto,
BANK ONE, NA,
as Administrative Agent,
GUARANTY FEDERAL BANK, F.S.B.,
as Syndication Agent,
and
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent
and
BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and Sole Bookrunner
$360,000,000 REVOLVING CREDIT FACILITY
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
DEFINITIONS.................................................... Page 1
ARTICLE II
THE CREDITS.................................................... Page 20
2.1. Commitment............................................... Page 20
2.2. Required Payments........................................ Page 20
2.3. Ratable Loans............................................ Page 20
2.4. Types of Advances........................................ Page 20
2.5. Commitment Fee; Changes in Aggregate Commitment.......... Page 20
2.6. Minimum Amount of Each Advance........................... Page 23
2.7. Optional Principal Payments.............................. Page 23
2.8. Method of Selecting Types and Interest Periods for
New Advances........................................... Page 23
2.9. Conversion and Continuation of Outstanding Advances...... Page 24
2.10. Changes in Interest Rate, etc............................ Page 24
2.11. Determination of Applicable Margins and Applicable
Commitment Rate........................................ Page 25
2.12. Rates Applicable After Default........................... Page 25
2.13. Method of Payment........................................ Page 26
2.14. Notes; Telephonic Notices................................ Page 26
2.15. Interest Payment Dates; Interest and Fee Basis........... Page 27
2.16. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions and Increases................ Page 27
2.17. Lending Installations.................................... Page 27
2.18. Non-Receipt of Funds by the Agent........................ Page 27
2.19. Withholding Tax Exemption................................ Page 27
2.20. Extension of Facility Termination Date................... Page 28
2.21. Replacement of Certain Lenders........................... Page 29
2.22. Swing Line .............................................. Page 30
2.23. Amounts Payable Under Original Agreement................. Page 31
ARTICLE III
CHANGE IN CIRCUMSTANCES........................................ Page 32
3.1. Yield Protection......................................... Page 32
3.2. Changes in Capital Adequacy Regulations.................. Page 33
3.3. Availability of Types of Advances........................ Page 33
3.4. Funding Indemnification.................................. Page 34
3.5. Lender Statements; Survival of Indemnity................. Page 34
</TABLE>
<PAGE> 3
ARTICLE IV
THE LETTER OF CREDIT FACILITY.................................. Page 34
4.1. Facility Letters of Credit............................... Page 34
4.2. Limitations.............................................. Page 34
4.3. Conditions............................................... Page 35
4.4. Procedure for Issuance of Facility Letters of Credit..... Page 36
4.5. Duties of Issuing Bank................................... Page 37
4.6. Participation............................................ Page 37
4.7. Compensation for Facility Letters of Credit.............. Page 39
4.8. Issuing Bank Reporting Requirements...................... Page 39
4.9. Indemnification; Nature of Issuing Bank's Duties......... Page 39
4.10. Resignation of Issuing Bank.............................. Page 40
4.11. Obligations of Issuing Bank and Other Lenders............ Page 41
ARTICLE V
CONDITIONS PRECEDENT........................................... Page 41
5.1. Effective Date........................................... Page 41
5.2. Each Advance............................................. Page 42
ARTICLE VI
REPRESENTATIONS AND WARRANTIES................................. Page 43
6.1. Existence and Standing................................... Page 43
6.2. Authorization and Validity............................... Page 43
6.3. No Conflict; Government Consent.......................... Page 44
6.4. Financial Statements..................................... Page 44
6.5. Material Adverse Effect.................................. Page 45
6.6. Taxes.................................................... Page 45
6.7. Litigation and Contingent Obligations.................... Page 45
6.8. Subsidiaries............................................. Page 45
6.9. ERISA.................................................... Page 45
6.10. Accuracy of Information.................................. Page 46
6.11. Regulation U............................................. Page 46
6.12. Material Agreements...................................... Page 46
6.13. Labor Disputes and Acts of God........................... Page 46
6.14. Ownership and Liens...................................... Page 46
6.15. Operation of Business.................................... Page 46
6.16. Laws; Environment........................................ Page 46
6.17. Investment Company Act................................... Page 47
6.18. Public Utility Holding Company Act....................... Page 47
6.19. Subordinated Indebtedness................................ Page 48
6.20. Year 2000................................................ Page 48
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE VII
AFFIRMATIVE COVENANTS.......................................... Page 48
7.1. Financial Reporting...................................... Page 48
7.2. Use of Proceeds.......................................... Page 51
7.3. Notice of Default........................................ Page 52
7.4. Conduct of Business...................................... Page 52
7.5. Taxes.................................................... Page 52
7.6. Insurance................................................ Page 52
7.7. Compliance with Laws..................................... Page 52
7.8. Maintenance of Properties................................ Page 52
7.9. Inspection............................................... Page 52
7.10. Environment.............................................. Page 53
7.11. New Subsidiary........................................... Page 53
7.12. Change in Schedules...................................... Page 53
7.13. Year 2000................................................ Page 53
ARTICLE VIII
NEGATIVE COVENANTS............................................. Page 54
8.1. Dividends................................................ Page 54
8.2. Indebtedness............................................. Page 54
8.3. Merger................................................... Page 55
8.4. Sale of Assets........................................... Page 55
8.5. Sale and Leaseback....................................... Page 55
8.6. Investments and Acquisitions............................. Page 55
8.7. Contingent Obligations................................... Page 57
8.8. Liens.................................................... Page 57
8.9. Redemption............................................... Page 58
8.10. Affiliates............................................... Page 58
8.11. Subordinated Indebtedness................................ Page 58
8.12. Amendments............................................... Page 59
8.13. Financial Undertakings................................... Page 59
ARTICLE IX
FINANCIAL COVENANTS............................................ Page 59
9.1. Minimum Consolidated Tangible Net Worth.................. Page 59
9.2. Permitted Indebtedness Ratio............................. Page 59
9.3. Land Owned............................................... Page 60
9.4. Housing Inventory........................................ Page 60
9.5. Rate Protection.......................................... Page 61
</TABLE>
<PAGE> 5
ARTICLE X
DEFAULTS......................................................... Page 61
ARTICLE XI
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................... Page 63
11.1. Acceleration.............................................. Page 63
11.2. Amendments................................................ Page 63
11.3. Preservation of Rights.................................... Page 64
ARTICLE XII
GENERAL PROVISIONS............................................... Page 64
12.1. Survival of Representations............................... Page 64
12.2. Governmental Regulation................................... Page 65
12.3. Taxes..................................................... Page 65
12.4. Headings.................................................. Page 65
12.5. Entire Agreement.......................................... Page 65
12.6. Nature of Obligations; Benefits of this Agreement......... Page 65
12.7. Expenses; Indemnification................................. Page 65
12.8. Numbers of Documents...................................... Page 66
12.9. Accounting................................................ Page 66
12.10. Severability of Provisions................................ Page 66
12.11. Nonliability of Lenders and Issuing Bank.................. Page 66
12.12. CHOICE OF LAW............................................. Page 66
12.13. CONSENT TO JURISDICTION................................... Page 66
12.14. WAIVER OF JURY TRIAL...................................... Page 67
12.15. Confidentiality........................................... Page 67
ARTICLE XIII
THE AGENT........................................................ Page 67
13.1. Appointment............................................... Page 67
13.2. Powers.................................................... Page 68
13.3. General Immunity.......................................... Page 68
13.4. No Responsibility for Loans, Recitals, etc................ Page 68
13.5. Action on Instructions of Lenders......................... Page 68
13.6. Employment of Agents and Counsel.......................... Page 68
13.7. Reliance on Documents; Counsel............................ Page 69
13.8. Agent's Reimbursement and Indemnification................. Page 69
13.9. Rights as a Lender or Issuing Bank ....................... Page 69
13.10. Lender Credit Decision.................................... Page 69
Page iv
<PAGE> 6
13.11 Successor Agent.................................... Page 70
13.12 Agent's and Arranger's Fees........................ Page 70
ARTICLE XIV
SETOFF: RATABLE PAYMENTS......................................... Page 71
14.1. Setoff............................................. Page 71
14.2. Ratable Payments................................... Page 71
ARTICLE XV
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
15.1. Successors and Assigns............................. Page 71
15.2. Participations..................................... Page 71
15.2.1. Permitted Participants; Effect..................... Page 72
15.2.2. Voting Rights...................................... Page 72
15.2.3. Benefit of Setoff.................................. Page 72
15.3. Assignments........................................ Page 73
15.3.1. Permitted Assignments.............................. Page 73
15.3.2. Effect; Effective Date............................. Page 73
15.4. Dissemination of Information....................... Page 74
15.5 Tax Treatment...................................... Page 74
ARTICLE XVI
NOTICES.......................................................... Page 74
16.1. Giving Notice...................................... Page 74
16.2. Change of Address.................................. Page 74
ARTICLE XVII
COUNTERPARTS..................................................... Page 75
EXHIBITS
EXHIBIT "A" - FORM OF GUARANTY
EXHIBIT "B-1" - FORM OF NOTE
EXHIBIT "B-2" - FORM OF AMENDED AND RESTATED NOTE
EXHIBIT "C" - FORM OF COMMITMENT AND ACCEPTANCE
EXHIBIT "D" - FORM OF OPINION - KAYE, SCHOLER, FIERMAN, HAYS AND HANDLER,
LLP
EXHIBIT "E" - FORM OF OPINION OF STEVEN LANE, DIRECTOR - LEGAL OF THE
BORROWER
EXHIBIT "F" - FORM OF OPINION - LORD BISSELL & BROOK
EXHIBIT "G" - FORM OF SECOND AMENDED AND RESTATED GUARANTY
EXHIBIT "H" - FORM OF THIRD AMENDED AND RESTATED CONTRIBUTION AND
INDEMNITY AGREEMENT
<PAGE> 7
EXHIBIT "I" - FORM OF THIRD AMENDED AND RESTATED SUBORDINATION AGREEMENT
EXHIBIT "J" - FORM OF BORROWING CERTIFICATE
EXHIBIT "K" - FORM OF QUARTERLY COMPLIANCE CERTIFICATE
SCHEDULE "I" TO COMPLIANCE CERTIFICATE
EXHIBIT "L" - FORM OF ASSIGNMENT AGREEMENT
EXHIBIT "I" TO ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
SCHEDULES
SCHEDULE "1-A" - GUARANTORS
SCHEDULE "1-B" - NON-BORROWING SUBSIDIARIES
SCHEDULE "6.3" - REQUIRED CONSENTS
SCHEDULE "6.7" - LITIGATION AND CONTINGENT OBLIGATIONS
SCHEDULE "6.8" - SUBSIDIARIES
SCHEDULE "6.16" - EXCEPTIONS TO ENVIRONMENTAL REPRESENTATIONS
SCHEDULE "8.2" - INDEBTEDNESS
SCHEDULE "8.6" - EXISTING INVESTMENTS
<PAGE> 8
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amended and Restated Credit Agreement, dated as of February
14, 2000, is among U.S. HOME CORPORATION, a Delaware corporation, as Borrower,
the Lenders listed on the signature pages of this Agreement, BANK ONE, NA
(formerly known as The First National Bank of Chicago), GUARANTY FEDERAL BANK,
F.S.B., as Syndication Agent and CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent.
WHEREAS, the Borrower and certain of the Lenders are party to that
certain Third Amended and Restated Credit Agreement dated as of May 28, 1999
(the "Original Agreement"); and
WHEREAS, certain Lenders not party to the Original Agreement have
agreed to issue Commitments (as hereinafter defined) and certain Lenders party
to the Original Agreement have agreed to increase their Commitments, thereby
increasing the Aggregate Commitment (as hereinafter defined) to $360,000,000.00;
and
WHEREAS, the parties hereto now desire to amend and restate the
Original Agreement in its entirety to effect such increase in the Aggregate
Commitment and to effect certain other modifications of the terms of the
Original Agreement as hereinafter provided.
NOW THEREFORE, in consideration of the premises, the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that,
effective as of the Effective Date (as hereinafter defined), the Original
Agreement is hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (excluding the Non-Borrowing Subsidiaries)
(i) acquires any going concern or all or substantially all of the assets of any
firm, corporation or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one transaction
or as the most recent transaction in a series of transactions) at least a
majority (in number of votes) of the securities of a corporation which have
ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage or voting power) of the outstanding partnership or other
ownership interests of a partnership, joint venture, limited liability company
or other similar business organization.
"Additional Lenders" is defined in Section 2.5(b).
<PAGE> 9
"Advance" means a borrowing hereunder consisting of either (i) the
aggregate amount of the several Loans (excluding Swing Line Loans) made by the
Lenders to the Borrower of the same Type and, in the case of a Eurodollar
Advance, for the same Interest Period or (ii) a Swing Line Loan made by the
Swing Line Bank to the Borrower.
"Affected Lender" is defined in Section 2.21.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person beneficially
owns (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934,
as amended) 20% or more of any class of voting securities (or other voting
ownership interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Agent" means Bank One, NA in its capacity as agent for the Lenders
pursuant to Article XIII, and not in its individual capacity as a Lender, and
any successor Agent appointed pursuant to Article XIII. Neither the
Documentation Agent nor the Syndication Agent shall have any of the rights,
responsibilities or obligations of the Agent under this Agreement.
"Aggregate Available Credit" means the aggregate of the Available
Credits of all of the Lenders.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as increased or reduced from time to time pursuant to the terms
hereof. As of the date of this Agreement, the Aggregate Commitment is
$360,000,000.
"Agreement" means this Fourth Amended and Restated Credit Agreement, as
it may be amended or modified (including by execution and delivery of a
Commitment and Acceptance in accordance with the provisions of Section 2.5(b))
and in effect from time to time.
"Agreement Accounting Principles" is defined in Section 12.9.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of (a)
the Federal Funds Effective Rate for such day plus (b) 1/2 of 1% per annum.
"Applicable Commitment Rate" means, as at any date of determination,
the rate per annum indicated in Section 2.11 as then applicable in the
determination of the commitment fee under Section 2.5.
"Applicable Eurodollar Margin" means, as at any date of determination,
the margin indicated in Section 2.11 as then applicable in the determination of
Eurodollar Rates and the Applicable Letter of Credit Rate.
"Applicable Floating Rate Margin" means, as at any date of
determination, the margin indicated in Section 2.11 as then applicable in the
determination of the Floating Rate applicable to Floating Rate Advances and
Swing Line Loans, provided, however, that, with respect to the
2
<PAGE> 10
first $25,000,000 of Floating Rate Advances (excluding Swing Line Loans)
outstanding at any time, the Applicable Floating Rate Margin shall be zero (0).
"Applicable Letter of Credit Rate" means, as at any date of
determination, a rate per annum equal to (i) the Applicable Eurodollar Margin as
at such date, less (ii) 0.25 percent.
"Applicable Margin(s)" means the Applicable Eurodollar Margin and/or
the Applicable Floating Rate Margin, as the case may be.
"Arranger" means Banc One Capital Markets, Inc.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the Chairman, President, Senior Vice
President or any Vice President of the Borrower, acting singly.
"Available Credit" means, at any date with respect to any Lender, the
amount (if any) by which such Lender's Commitment exceeds the sum of (i) the
outstanding principal balance of such Lender's Loans as of such date (including,
in the case of the Swing Line Bank, Swing Line Loans), plus (ii) such Lender's
ratable share (determined in accordance with Section 4.6) of the Facility Letter
of Credit Obligations as of such date.
"Bank One" means Bank One, NA (formerly known as The First National
Bank of Chicago).
"Borrower" means U.S. Home Corporation, a Delaware corporation, and its
successors and assigns.
"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 (but only to the extent that such assets are
not subject to any Liens (other than Permitted Encumbrances), whether or not
such Liens are permitted hereunder): (i) the Receivables, (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%), and (iv)
the sum (but not exceeding forty percent (40%) of Total Senior Loan Commitments)
of (A) the book value of Finished Lots, multiplied by seventy percent (70%),
plus (B) the book value of Land under Development, multiplied by fifty percent
(50%) plus (C) the book value of Entitled Land, multiplied by thirty percent
(30%).
"Borrowing Base Certificate" means a written certificate substantially
in the form set forth in Exhibit "J" (or such other form as is acceptable to the
Borrower and the Required Lenders) setting forth the amount of the Borrowing
Base with respect to the calendar month most recently completed, certified as
true and correct by an Authorized Officer of the Borrower.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
3
<PAGE> 11
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended) of 50% or more of the outstanding shares of voting
stock of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans (other than Swing Line Loans), and to participate in the Facility
Letters of Credit in accordance with Section 4.6(a), not exceeding the amount
set forth opposite its signature below or as set forth in any Notice of
Assignment relating to any assignment that has become effective pursuant to
Section 15.3.2 or as set forth in any Commitment and Acceptance in accordance
with Section 2.5(b), as such amount may be modified from time to time pursuant
to the terms hereof.
"Commitment and Acceptance" is defined in Section 2.5(b).
"Consolidated Funded Indebtedness" means, at any date, the outstanding
amount of all Indebtedness of the Borrower and the Guarantors, excluding accrued
expenses incurred in the ordinary course of business and guarantees of
performance or completion and performance bonds (but not excluding guarantees of
payment), all determined without duplication and on a consolidated basis for the
Borrower and the Guarantors in conformity with Agreement Accounting Principles.
"Consolidated Interest Expense" means for any period, without
duplication, the aggregate amount of interest which, in conformity with
Agreement Accounting Principles, would be set opposite the caption "interest
expense" or any like caption on an income statement for the Borrower and the
Guarantors (including, without limitation, imputed interest included on
Capitalized Lease Obligations, all commissions, discounts and other fees and
charges owed with respect to Letters of Credit and bankers' acceptance
financing, the net costs associated with Rate Hedging Obligations, amortization
of other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premiums, if any, and all other
4
<PAGE> 12
noncash interest expense other than interest and other charges amortized to cost
of sales) and includes, with respect to the Borrower and the Guarantors, without
duplication, all interest included as a component of cost of sales for such
period.
"Consolidated Interest Incurred" means for any period, without
duplication, the aggregate amount of interest which, in conformity with
Agreement Accounting Principles, would be set opposite the caption "interest
expense" or any like caption on an income statement for the Borrower and the
Guarantors (including, without limitation, imputed interest included on
Capitalized Lease Obligations, all commissions, discounts and other fees and
charges owed with respect to Letters of Credit and bankers' acceptance
financing, the net costs associated with Rate Hedging Obligations, amortization
of other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premiums, if any, and all other
noncash interest expense other than interest and other charges amortized to cost
of sales) and includes, with respect to the Borrower and the Guarantors, without
duplication, all capitalized interest for such period, all interest attributable
to discontinued operations for such period to the extent not set forth on the
income statement under the caption "interest expense" or any like caption, and
all interest actually paid by the Borrower or a Guarantor under any Contingent
Obligation during such period.
"Consolidated Net Income" means, for any period, the net income (or
loss) of the Borrower and the Guarantors on a consolidated basis for such period
taken as a single accounting period, determined in conformity with Agreement
Accounting Principles; provided that there shall be excluded from Consolidated
Net Income (i) the income (or loss) of any Person that is not the Borrower or a
Guarantor, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or a Guarantor by such Person during
such period, and (ii) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or consolidated
with the Borrower or any of its Subsidiaries or that Person's assets are
acquired by the Borrower or any of its Subsidiaries.
"Consolidated Senior Debt Borrowings" means, at any date, with respect
to the Borrower and the Guarantors, on a consolidated basis, the outstanding
principal amount 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
secured by a Lien on Property, (ii) Indebtedness of the Borrower to a Guarantor,
a Guarantor to the Borrower or a Guarantor to another Guarantor, and (iii) any
Subordinated Indebtedness.
"Consolidated Tangible Net Worth" means, at any date, the consolidated
stockholders' equity of the Borrower determined in conformity with Agreement
Accounting Principles, less its consolidated Intangible Assets, all determined
as of such date. For purposes of this definition "Intangible Assets" means the
amount (to the extent reflected in determining such consolidated stockholders'
equity) of (i) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) subsequent to March
31, 1998 in the book value of any asset owned by the Borrower, (ii) all
investments in Non-Borrowing Subsidiaries and (iii) all unamortized debt
discount, goodwill, patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible items.
5
<PAGE> 13
"Contingent Obligation" of a Person means, without duplication, any
agreement, undertaking or arrangement by which such Person assumes, guarantees
(other than a Guaranty), endorses (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection),
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability of
any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract, or application or other
contingent obligation with respect to a Letter of Credit, but excluding
guarantees of performance or completion and performance bonds, or setoff rights
of a lender. "Contingent Obligation" does not include the obligation to make
capital contributions to a joint venture.
"Contribution Agreement" is defined in Section 5.1(x).
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Coverage Test" is defined in Section 9.2(b).
"Default" means an event described in Article X after the expiration of
any applicable cure or notice period.
"Documentation Agent" means Credit Lyonnais New York Branch in its
capacity as documentation agent and not in its capacity as a Lender. The
Documentation Agent shall not have any of the rights, responsibilities or
obligations of the Agent under this Agreement.
"EBITDA" means, for any period, without duplication, (i) the sum of the
amounts for such period of (a) Consolidated Net Income, (b) Consolidated
Interest Expense, (c) charges against income for all federal, state and local
taxes, (d) depreciation expense, (e) amortization expense, (f) other non-cash
charges and expenses, and (g) any losses arising outside of the ordinary course
of business which have been included in the determination of Consolidated Net
Income, less (ii) any gains arising outside of the ordinary course of business
which have been included in the determination of Consolidated Net Income, all as
determined on a consolidated basis for the Borrower and the Guarantors in
conformity with Agreement Accounting Principles.
"Effective Date" means the later of (a) the date on which this
Agreement has been fully executed and delivered by the Lenders, the Agent, the
Issuing Bank and the Borrower and (b) the date on which the conditions set forth
in Section 5.1 have been satisfied.
"Entitled Land" means parcels of land owned by the Borrower or any
Guarantor which are zoned for the construction of single-family dwellings,
whether detached or attached (including condominiums but excluding mobile
homes); provided, however, that the term "Entitled Land" shall not include Land
under Development, Finished Lots or any real property upon which the
construction of Housing Units has commenced.
6
<PAGE> 14
"Equity Security" has the meaning set forth in Rule 3a11-1 under the
Securities Exchange Act of 1934, as amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the rate determined by the Agent to be the rate at
which deposits in U.S. dollars are offered by Bank One to first-class banks in
the London interbank market at approximately 11 a.m. (London time) two Business
Days prior to the first day of such Interest Period, in the approximate amount
of Bank One's relevant Eurodollar Loan and having a maturity approximately equal
to such Eurodollar Interest Period.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar
Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Eurodollar Margin. The Eurodollar Rate shall be rounded to
the next higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Excluded Taxes" is defined in Section 3.1.
"Extension Request" is defined in Section 2.20(a).
"Facility Increase Notice" is defined in Section 2.5(c).
"Facility Letter of Credit" means (a) any Letter of Credit issued by
the Issuing Bank prior to the Effective Date pursuant to the Original Agreement
(or pursuant to any predecessor credit agreement among Agent, Borrower and
certain of the Lenders) that is outstanding on the Effective Date and (b) any
Letter of Credit issued by the Issuing Bank for the account of the Borrower or a
Guarantor in accordance with Article IV.
"Facility Letter of Credit Fee" means a fee, payable with respect to
each Facility Letter of Credit issued by the Issuing Bank, in an amount per
annum equal to the product of (i) the Applicable Letter of Credit Rate
(determined on a daily basis on the amount of the outstanding Facility Letters
of Credit) and (ii) the greater of (A) $50,000 or (B) the face amount of such
Facility Letter of Credit.
"Facility Letter of Credit Obligations" means, at any date, the sum of
(i) the aggregate undrawn face amount of all outstanding Facility Letters of
Credit, and (ii) without duplication of any amounts referred to in clause (i),
the aggregate amount paid by an Issuing Bank on any Facility Letters of Credit
to the extent (if any) not reimbursed by the Borrower or by the Lenders under
Section 4.4.
7
<PAGE> 15
"Facility Termination Date" means May 31, 2002, as the same may be
extended as provided in Section 2.20.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) for such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Undertaking" of a Person means (i) any repurchase obligation
or liability of such Person or any of its Subsidiaries with respect to accounts
or notes receivable sold by such Person or any of its Subsidiaries, (ii) any
sale and leaseback transactions which do not create a liability on the
consolidated balance sheet of such Person and its Subsidiaries, (iii) any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheets of such Person and its Subsidiaries (excluding any obligation of a Person
or any of its Subsidiaries to a governmental authority, agency or district to
acquire or develop real property and/or to pay taxes or other assessments with
respect to real property, notwithstanding that such tax payments or assessments
are applied to pay debt service on bonds issued by such governmental authority,
agency or district), or (iv) any Rate Hedging Obligations.
"Finished Lots" means parcels of land owned by the Borrower or any
Guarantor which are duly recorded and platted for the construction of
single-family dwelling units, whether detached or attached (including
condominiums but excluding mobile homes) and zoned for such use, with respect to
which all requisite governmental consents and approvals have been obtained and
on which (i) all development activity, other than the application of the seal or
finishing coat on improved roadways and other minor repairs required to dedicate
such roadways, has been completed and (ii) water and sewer connections have been
brought to the lot shown on the plat covering such parcel and are available for
hook-up to such dwelling or dwellings; provided, however, that the term
"Finished Lots" shall not include any real property upon which the construction
of a dwelling or dwellings has commenced.
"Fixed Rate Debt" means any obligation described in clauses (i), (iv)
or (viii) of the definition of "Indebtedness" (i) that bears interest at a rate
that is fixed until maturity of such Indebtedness and that does not fluctuate or
vary, whether on the basis of rates established from time to time by the
obligee, indices, market conditions or otherwise or (ii) having an average
weighted maturity equal to or exceeding the then remaining term of this
Agreement and with respect to which the Borrower has arranged Rate Hedging
Obligations that protect the Borrower from fluctuations of interest rates, which
Rate Hedging Obligations are acceptable to the Required Lenders in all respects,
including without limitation the Person or Persons that are parties thereto, the
fixed interest rates thereunder and the other terms and conditions thereof.
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<PAGE> 16
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day, plus (ii) the Applicable Floating Rate Margin,
in each case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"GAAP" means generally accepted accounting principles in effect in the
United States from time to time, consistently applied.
"Guarantors" means the Subsidiaries of the Borrower listed on Schedule
"1-A" hereto and any Subsidiary of Borrower that shall hereafter execute a
Guaranty in accordance with Section 7.11 hereof, and any successors and assigns
of any of the foregoing.
"Guaranty" means the Second Amended and Restated Guaranty provided for
in Section 5.1(ix) or a Guaranty, in substantially the form of Exhibit "A", duly
executed by one or more of the Guarantors, as any of the foregoing may be
amended or modified and in effect from time to time.
"Housing Unit" means a single-family dwelling (including any
single-family dwelling for which the construction thereof has commenced but has
not been completed), whether detached or attached (including condominiums but
excluding mobile homes), including the parcel of land on which such dwelling is
located or to be located, that is (or, upon completion of construction thereof,
will be) available for sale; the term "Housing Unit" includes an Inventory
Housing Unit.
"Housing Unit Closing" means a closing of the sale of a Housing Unit by
the Borrower or a Guarantor to a bona fide purchaser for value that is not an
Affiliate of the Borrower.
"Housing Unit Under Contract" means a Housing Unit owned by the
Borrower or a Guarantor as to which the Borrower or such Guarantor has a bona
fide contract of sale, in a form customarily employed by the Borrower or such
Guarantor, entered into not more than 15 months prior to the date of
determination with a Person who is not an Affiliate of the Borrower, under which
contract no defaults then exist and not less than $1,000.00 toward the purchase
price has been paid; provided, however, that in the case of any Housing Unit the
purchase of which is to be financed in whole or in part by a loan insured by the
Federal Housing Administration or guaranteed by the Veterans Administration, the
required minimum downpayment shall be the amount (if any) required under the
rules of the relevant agency.
"Indebtedness" of a Person means, without duplication, such Person's
(i) outstanding obligations for borrowed money, (ii) outstanding obligations
representing the deferred purchase price of Property or services (other than (A)
accounts payable arising in the ordinary course of such Person's business and
(B) rights or duties under option agreements to acquire real property), (iii)
outstanding obligations, whether or not assumed, secured by Liens (other than
Permitted Encumbrances) or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (iv) outstanding
obligations which are evidenced by notes, debentures, or other similar
instruments, (v) outstanding Capitalized Lease Obligations, (vi) net liabilities
under Rate Hedging Obligations, (vii) Contingent Obligations and (viii)
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<PAGE> 17
reimbursement obligations for which such Person is obligated with respect to
outstanding Letters of Credit. Indebtedness includes, in the case of the
Borrower, the Obligations.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three or
six months thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second or third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Inventory Housing Unit" means any Housing Unit owned by the Borrower
or any Guarantor that is not a Housing Unit Under Contract.
"Inventory Valuation Date" means the last day of the most recent
calendar month with respect to which the Borrower is required to have delivered
a Borrowing Base Certificate pursuant to Section 7.1(vii) hereof.
"Investment" of a Person means any loan, advance, extension of credit
(other than accounts receivable arising in the ordinary course of business),
deposit account or contribution of capital by such Person to any other Person or
any investment in, or purchase or other acquisition of, the stock, partnership,
joint venture or limited liability company interests, notes, debentures or other
securities of any other Person made by such Person. The outstanding amount of
any Investment shall be the original cost of such Investment (plus the cost of
all additional Investments, if any), without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment (except, solely for purposes of Sections 8.6(vi) and (xiv), to the
extent that the same is reflected in the "net equity investment" determined in
accordance with Agreement Accounting Principles), reduced by the payment of
dividends or distributions (including tax sharing payments) in connection with
such Investment or any other amounts received in respect of such Investment, to
the extent constituting a return on capital in conformity with Agreement
Accounting Principles or the repayment of any loan, advance or extension of
credit.
"Issuance Date" means the date on which a Facility Letter of Credit is
issued, amended or extended.
"Issuing Bank" means any Lender that may from time to time be
designated as Issuing Bank in accordance with the provisions of Section 4.10,
provided, however, that a Lender may be designated as Issuing Bank only if, at
the time of such designation, it has a rating of not less than "A" as publicly
announced by S&P. As of the date of this Agreement, Bank One is the Issuing
Bank.
"Land under Development" means parcels of land owned by the Borrower or
any Guarantor which are zoned for the construction of single-family dwelling
units, whether
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detached or attached (including condominiums but excluding mobile homes) and
upon which construction of site improvements has commenced and is proceeding;
provided, however, that the term "Land under Development" shall not include
Finished Lots or any real property upon which the construction of any such
dwelling or dwellings has commenced.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, and any entity that shall become a party hereto as a Lender
in accordance with the provisions of Section 2.5(b), and their respective
successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or Affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued by a financial institution upon the application of
such Person or upon which such Person is an account party or for which such
Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, (i) such Lender's portion of
any Advance, including (unless the context otherwise indicates) any Advance
consisting of a Swing Line Loan, and (ii) in the case of a New Lender, any
payment made by such Lender pursuant to Section 2.5(d).
"Loan Documents" means this Agreement, the Notes, any Guaranties and
any Reimbursement Agreements.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), or results of operations
of the Borrower and the Guarantors, taken as a whole, (ii) the ability of the
Borrower to perform its obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents or the rights or
remedies of the Agent, the Lenders or any Issuing Bank thereunder.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"New Lender" is defined in Section 2.5(b).
"Non-Borrowing Subsidiaries" means the Subsidiaries of the Borrower
listed on Schedule "1-B" hereto and any Person that (i) hereafter becomes a
Subsidiary of the Borrower and has as its primary business one or more of the
types of businesses currently conducted by the Subsidiaries listed on Schedule
"1-B" or (ii) is or hereafter becomes a Subsidiary of a Non-Borrowing
Subsidiary.
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"Non-Recourse Indebtedness" with respect to any Person means
Indebtedness of such Person (i) for which the sole legal recourse for collection
of principal and interest on such Indebtedness is against the specific property
identified in the instruments evidencing or securing such Indebtedness and such
property was acquired with the proceeds of such Indebtedness or such
Indebtedness was incurred within 90 days after the acquisition of such property
and for which no other assets of such Person may be realized upon in collection
of principal or interest on such Indebtedness or (ii) that refinances
Indebtedness described in clause (i) and for which the recourse is limited to
the same extent described in clause (i).
"Note" means a promissory note, in substantially the form of Exhibit
"B-1" hereto (or, in the case of a promissory note that amends and restates a
note theretofore held by such Lender, in the form of Exhibit "B-2" hereto), duly
executed by the Borrower and payable to the order of a Lender in the amount of
its Commitment, including any amendment, modification, renewal or replacement of
such promissory note.
"Notice of Assignment" is defined in Section 15.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, the Facility Letter of Credit Obligations, all accrued
and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to the Lenders or to any Lender, the Agent, the
Swing Line Bank any Issuing Bank or any indemnified party hereunder arising
under the Loan Documents.
"Original Agreement" is defined in the recitals of this Agreement.
"Owned Land" means land (other than Finished Lots) owned or held by the
Borrower or any Guarantor for development or sale (including Land under
Development, Entitled Land and raw land).
"Participants" is defined in Section 15.2.1.
"Payment Date" means the first day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Encumbrances" means any of the following:
(i) Liens for taxes, assessments or governmental charges or levies
on a Person's Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves shall have been set aside on
such Person's books in accordance with GAAP.
(ii) Liens imposed by law, such as carriers', warehousemen's,
mechanics' and materialmen's Liens and other similar Liens
arising in the ordinary course of business which secure
payment of obligations not more than 90 days past due or which
are being contested in good faith by appropriate proceedings
and for which
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<PAGE> 20
adequate reserves shall have been set aside on a Person's
books in accordance with GAAP.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation in accordance with GAAP.
(iv) Utility easements, rights of way, zoning restrictions and such
other encumbrances or charges against real property, or other
minor irregularities of title, as are of a nature generally
existing with respect to properties of a similar character and
which do not in any material way interfere with the use
thereof or the sale thereof in the business of the Borrower or
the Guarantors.
(v) Easements, dedications, assessment district or similar Liens
in connection with municipal financing and other similar
encumbrances or charges, in each case reasonably necessary or
appropriate for the development of real property of the
Borrower or a Guarantor, and which are granted in the ordinary
course of the business of such Borrower or Guarantor, and
which in the aggregate do not materially burden or impair the
fair market value or use of such real property (or the project
to which it is related) for the purposes for which it is or
may reasonably be expected to be held.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PIR" means, at the date hereof, 1.75, as such amount may hereafter be
adjusted from time to time as provided in Section 9.2.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced by Bank One from time to time, changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 15.3.1.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
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<PAGE> 21
exchange agreements, interest rate cap or collar protection agreements, forward
rate currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"Receivables" means the net proceeds payable to, but not yet received
by, the Borrower or any Guarantor following a Housing Unit Closing.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances
or extends any Indebtedness described in Schedule "8.2" hereto (or that refunds,
refinances or extends any refund, refinancing or extension of such
Indebtedness), but only to the extent that (i) the Refinancing Indebtedness is
subordinated to or pari passu with the Obligations to the same extent as the
Indebtedness being refunded, refinanced or extended, if at all, (ii) the
Refinancing Indebtedness is scheduled to mature no earlier than the then current
maturity date of such Indebtedness being refunded, refinanced or extended, (iii)
such Refinancing Indebtedness is in an aggregate amount that is equal to or less
than the sum of the aggregate amount then outstanding under the Indebtedness
being refunded, refinanced or extended, (iv) the Person or Persons (or Persons
who are Subsidiaries of such Persons or of which such Persons are Subsidiaries)
liable for the payment of such Refinancing Indebtedness are the same Persons (or
Persons who are Subsidiaries of such Persons or of which such Persons are
Subsidiaries) that were liable for the Indebtedness being refunded, refinanced
or extended when such Indebtedness was initially incurred and (v) such
Refinancing Indebtedness is incurred within 120 days before or after the
Indebtedness being refunded, refinanced or extended is so refunded, refinanced
or extended, provided, however, that, if such Refinancing Indebtedness is
incurred within the 120-day period before the refunding, refinancing or
extension of such Indebtedness, the Borrower shall deliver to the Agent, at the
time it incurs such Refinancing Indebtedness, the Borrower's agreement and
irrevocable commitment, for the benefit of the Lenders, to use the net proceeds
of such Refinancing Indebtedness to refund, refinance or extend such
Indebtedness.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to member banks of the Federal Reserve System.
"Rejecting Lender" is defined in Section 2.20(b).
"Reimbursement Agreement" means, with respect to a Facility Letter of
Credit, such form of application therefor and form of reimbursement agreement
therefor (whether in a single or several documents, taken together) as an
Issuing Bank may employ in the ordinary course of business for its own account,
with such modifications thereto as may be agreed upon by such Issuing Bank and
the Borrower and as are not materially adverse (in the reasonable judgment of
such Issuing Bank and the Agent) to the interests of the Lenders; provided,
however, in the event
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of any conflict between the terms of any Reimbursement Agreement and this
Agreement, the terms of this Agreement shall control.
"Replacement Lender" is defined in Section 2.21.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such Section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities (as defined therein).
"Rights Plan" means that certain rights agreement, dated as of November
7, 1996, between the Borrower and The First Chicago Trust Company of New York,
as agent, as the same may be modified or amended from time to time, provided
that the redemption price per right to be redeemed thereunder shall not exceed
$0.01.
"S&P" means Standard & Poor's Ratings Services.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Debt" means the Senior Debt Securities or, if and to the extent
the same are refinanced, the Refinancing Indebtedness with respect thereto
(unless such Refinancing Indebtedness is Subordinated Indebtedness).
"Senior Debt Rating" means the second highest rating among the publicly
announced ratings by Moody's, S&P, Duff & Phelps Credit Rating Co. and/or Fitch
Investors Service, L.P. on the Borrower's Senior Debt, provided, however, (i) if
neither of the two highest ratings is by Moody's or S&P, the Senior Debt Rating
shall be (x) the rating assigned by either Moody's or S&P, if only one of
Moody's or S&P shall publicly announce a rating of the Borrower's Senior Debt,
or (y) the higher of the two ratings by Moody's and S&P, if both shall publicly
announce a rating of the Borrower's Senior Debt, and (ii) if neither Moody's nor
S&P shall publicly announce ratings of the Borrower's Senior Debt, no Senior
Debt Rating shall be deemed to exist. The Senior Debt Rating shall change if and
when such rating(s) change, and such change in the Senior Debt Rating shall have
the effect provided for in Section 2.11(b) and elsewhere in this Agreement.
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"Senior Debt Securities" means (a) the 7.95% Senior Notes due 2001 of
the Borrower issued in the original principal amount of $75,000,000 pursuant to
that certain Indenture, dated as of February 16, 1996, between the Borrower and
IBJ Whitehall Bank & Trust Company, as Trustee, (b) the 8.25% Senior Notes due
2004 of the Borrower issued in the original principal amount of $100,000,000
pursuant to that certain Senior Indenture dated as of August 28, 1997, between
the Borrower and IBJ Whitehall Bank & Trust Company, as Trustee and (c) the
7.75% Senior Notes due 2005 of the Borrower issued in the original principal
amount of $100,000,000 pursuant to that certain Indenture dated as of August 28,
1997 between the Borrower and IBJ Whitehall Bank and Trust Company, as Trustee.
"Senior Indentures" means the Indentures identified in the definition
of the term "Senior Debt Securities" and any other Indenture pursuant to which
the Borrower or a Subsidiary issues any Refinancing Indebtedness with respect to
any of the Senior Debt Securities (unless such Refinancing Indebtedness is
Subordinated Indebtedness).
"Significant Guarantor" means any Guarantor with assets or liabilities
or annual revenues in excess of $1,000,000.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
reasonable satisfaction of the Required Lenders, including, as to the Borrower,
the Subordinated Notes.
"Subordinated Notes" means (a) the 8.88% Senior Subordinated Notes due
2007 of the Borrower issued in the original principal amount of $125,000,000
pursuant to that certain Senior Subordinated Indenture dated as of August 28,
1997 between the Borrower and IBJ Whitehall Bank & Trust Company, as Trustee and
(b) the 8.875% Senior Subordinated Notes due 2009 of the Borrower issued in the
original principal amount of $125,000,000 pursuant to that certain Senior
Subordinated Indenture dated February 19, 1999 between the Borrower and IBJ
Whitehall Bank & Trust Company, Trustee.
"Subordination Agreement" is defined in Section 5.1(xi).
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power for the election of the
board of directors of which shall at the time be beneficially owned (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended)
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, or (ii) any partnership,
association, joint venture, limited liability company or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and the Guarantors, taken as a whole, Property which (i) represents
more than 10% of Consolidated Tangible Net Worth, as would be shown in the
consolidated financial statements of the Borrower
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<PAGE> 24
and its Subsidiaries as at the beginning of the fiscal quarter in which such
determination is made, or (ii) is responsible for more than 10% of Consolidated
Net Income, as reflected in the financial statements referred to in clause (i)
above.
"Swing Line Bank" means Bank One or any Purchaser to which Bank One
assigns the Swing Line Commitment in accordance with Section 15.3.1.
"Swing Line Commitment" means the commitment of the Swing Line Bank to
make Swing Line Loans pursuant to Section 2.22(a). As of the date of this
Agreement, the Swing Line Commitment is in the amount of $10,000,000.
"Swing Line Loan" has the meaning assigned to such term in Section
2.22(a).
"Syndication Agent" means Guaranty Federal Bank, F.S.B., in its
capacity as syndication agent, and not in its capacity as an individual Lender.
The Syndication Agent shall not have any of the rights, responsibilities or
obligations of the Agent under this Agreement.
"Total Senior Loan Commitments" means, at any date, on a consolidated
basis for the Borrower and the Guarantors, (i) the sum of (a) the outstanding
principal amount of all 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) (without duplication of the items included in clause (a)
above) 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 (a) the outstanding principal
amount of all Subordinated Indebtedness of the Borrower and any of the
Guarantors and (b) the outstanding principal amount of any Indebtedness secured
by a Lien (other than a Permitted Encumbrance) on Property, all as determined in
accordance with Agreement Accounting Principles.
"Transferee" is defined in Section 15.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of the assets of such Plans allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans, using the actuarial methods and assumptions utilized in the actuarial
report for each such Plan as of such date.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
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"Unrestricted Cash" of a Person means the cash of such Person that
would not be identified as "restricted" on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Unused Commitment" means, at any date with respect to any Lender, the
amount (if any) by which such Lender's Commitment exceeds the sum of (i) the
outstanding principal balance of such Lender's Loans (including, in the case of
the Swing Line Bank, Swing Line Loans) as of such date and (ii) such Lender's
ratable share (determined in accordance with Section 4.6) of the outstanding
amount of the Facility Letters of Credit.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be beneficially
owned (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934,
as amended) directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint
venture, limited liability company or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. In the case of the Borrower, the term "Wholly-Owned
Subsidiary" shall also include those Subsidiaries identified in Schedule 6.8 as
of the date of this Agreement in which the ownership percentage designated
therein is 99.9%.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain of the Borrower's and the Guarantors'
computer applications to effectively handle data (including dates) on and after
January 1, 2000, as such inability affects the business, operations, or
financial condition of the Borrower or the Guarantors, taken as a whole.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and after the Effective Date and prior to the
Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make Loans (other than Swing Line
Loans) to the Borrower from time to time in amounts not to exceed in the
aggregate at any one time outstanding the amount of its Commitment; provided,
however, that a Lender shall not be required to make any Loan or Loans in excess
of the amount of such Lender's then Available Credit. Subject to the terms of
this Agreement, the Borrower may borrow, repay and reborrow at any time prior to
the Facility Termination Date. The Commitments to lend hereunder shall expire on
the Facility Termination Date.
2.2. Required Payments. (a) Any outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
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<PAGE> 26
(b) If at any time Consolidated Senior Debt Borrowings exceed
the Borrowing Base, the Borrower shall pay to the Agent, as a payment of the
Advances, an amount (not to exceed the sum of the outstanding Advances) equal to
the amount by which the Consolidated Senior Debt Borrowings exceed the Borrowing
Base.
2.3. Ratable Loans. Each Advance (other than a Swing Line Loan)
hereunder shall consist of Loans (other than Swing Line Loans) made from the
several Lenders ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment.
2.4. Types of Advances. Advances consisting of Swing Line Loans shall
be Floating Rate Advances, and other Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9.
2.5. Commitment Fee; Changes in Aggregate Commitment. (a) The Borrower
agrees to pay to the Agent for the account of each Lender a commitment fee, at a
rate per annum equal to the Applicable Commitment Rate, on the daily average of
such Lender's Unused Commitment from the date hereof to and including the
Facility Termination Date, payable in arrears on the first day of each January,
April, July and October hereafter and on the Facility Termination Date. The
Borrower may permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in integral multiples of $5,000,000 at any time or
from time to time, upon at least three (3) Business Days' written notice to the
Agent, which notice shall specify the amount of any such reduction, provided,
however, that the amount of the Aggregate Commitment may not be reduced below
the sum of (i) the aggregate principal amount of the outstanding Advances and
(ii) the Facility Letter of Credit Obligations. All accrued commitment fees
shall be payable on the effective date of any termination of the obligations of
the Lenders to make Loans hereunder.
(b) The Borrower may, at any time and from time to time,
request, by notice to the Agent, the Agent's approval of an increase of the
Aggregate Commitment within the limitations hereafter described, which request
shall set forth the amount of such requested increase. Within twenty (20) days
of such request, the Agent shall advise the Borrower of its approval or
disapproval of such request; failure to so advise the Borrower shall constitute
disapproval. Upon approval of the Agent, the Aggregate Commitment may be so
increased either by having additional financial institutions approved by the
Borrower and the Agent ("Additional Lenders") become Lenders and/or by having
any one or more of the then existing Lenders (at their respective election in
their sole discretion) that have been approved by the Borrower and the Agent,
increase the amount of its Commitment (any such Lender that elects to increase
its Commitment and any Additional Lender being hereinafter referred to as a "New
Lender"), provided that (i) the Commitment of any Additional Lender shall not be
less than $10,000,000 (or such lesser amount as the Agent may approve); (ii) the
Aggregate Commitment shall not exceed $410,000,000; (iii) the Borrower and each
New Lender shall have executed and delivered a commitment and acceptance (the
"Commitment and Acceptance") substantially in the form of Exhibit "C" hereto,
and the Agent shall have accepted and executed the same; (iv) the Borrower shall
have executed and delivered to the Agent a Note or Notes payable to the order of
each New Lender, each such Note to be in the amount of such New Lender's
Commitment or increase in its Commitment (as applicable); (v) the Borrower shall
have delivered to the Agent opinions of counsel (substantially similar to the
forms of opinions
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<PAGE> 27
attached hereto as Exhibits "D" and "F," modified to apply to the increase in
the Aggregate Commitment and each Note and Commitment and Acceptance executed
and delivered in connection therewith); (vi) the Guarantors shall have consented
in writing to the new Commitments or increases in Commitments (as applicable)
and shall have agreed that their Guaranties continue in full force and effect;
(vii) the Borrower and each New Lender shall otherwise have executed and
delivered such other instruments and documents as the Agent shall have
reasonably requested in connection with such new Commitment or increase in the
Commitment (as applicable); and (viii) if the Aggregate Commitment shall at any
time have been reduced, any subsequent increase of the Aggregate Commitment
shall be subject to the provisions of Section 2.5(c). The form and substance of
the documents required under clauses (iii) through (vii) above shall be fully
acceptable to the Agent. The Agent shall provide written notice to all of the
Lenders hereunder of the admission of any Additional Lender or the increase in
the Commitment of any other New Lender hereunder and shall furnish to each of
the Lenders copies of the documents required under clauses (iii), (v), (vi) and
(vii) above.
(c) Notwithstanding the provisions of Section 2.5(b), in the
event that the Aggregate Commitment shall at any time have been reduced, the
Aggregate Commitment shall not thereafter be increased unless and until each of
the then existing Lenders shall have been given the right (at its election) to
increase its Commitment by an amount equal to the lesser of (i) such Lender's
ratable portion (based upon the ratio (determined as of the date of the
Borrower's request for the Agent's approval of such increase) of its then
existing Commitment to the then existing Aggregate Commitment) of the aggregate
amount of all prior decreases (net of prior increases) in the Aggregate
Commitment or (ii) such Lender's ratable portion (based upon the ratio
(determined as of the date of the Borrower's request for the Agent's approval of
such increase) of its then existing Commitment to the then existing Aggregate
Commitment) of the proposed increase in the Aggregate Commitment. If, at any
time after the Aggregate Commitment has been reduced, the Agent shall approve
the Borrower's request for an increase in the Aggregate Commitment, the Agent
shall promptly, but not later than ten (10) days after its receipt of the
Borrower's request, deliver to the then existing Lenders a notice (the "Facility
Increase Notice") setting forth the amount of the increase so requested by the
Borrower, and the Lenders' rights hereunder to increase their Commitments shall
be exercisable within, but not later than, thirty (30) days following the date
of delivery of the Facility Increase Notice. If a Lender elects to exercise such
right by notice given to the Agent within such 30-day period, then such Lender
shall (in accordance with and subject to the provisions of Section 2.5(b))
increase its Commitment by an amount determined in accordance with the first
sentence of this Section 2.5(c). If such Lender does not so elect by notice
given to the Agent within such 30-day period, the Borrower and the Agent may
proceed with the increase of the Aggregate Commitment as set forth in the
Facility Increase Notice, subject to and in accordance with Section 2.5(b).
Nothing contained herein shall preclude any Lender, at its election and with the
approval of the Borrower and the Agent as provided in and otherwise in
accordance with Section 2.5(b), from increasing its Commitment to an amount in
excess of the amount provided for in this Section 2.5(c).
(d) Upon the effective date of any increase in the Aggregate
Commitment pursuant to the provisions hereof, which effective date shall be
mutually agreed upon by the Borrower, each New Lender and the Agent, each New
Lender shall make a payment to the Agent in an amount sufficient, upon the
application of such payments by all New Lenders to the reduction of the
outstanding Advances held by the Lenders, to cause the principal amount
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<PAGE> 28
outstanding under the Loans made by each Lender (including any New Lender) to be
in the proportion to the ratio that such Lender's Commitment (upon the effective
date of such increase) bears to the Aggregate Commitment as so increased. The
Borrower hereby irrevocably authorizes each New Lender to fund to the Agent the
payment required to be made pursuant to the immediately preceding sentence for
application to the reduction of the outstanding Loans held by the other Lenders,
and each such payment shall constitute a Loan hereunder. If, as a result of the
repayment of the Advances provided for in this Section 2.5(d), any payment of a
Eurodollar Advance occurs on a day which is not the last day of the applicable
Interest Period, the Borrower will pay to the Agent for the benefit of any of
the Lenders holding a Eurodollar Loan any loss or cost incurred by such Lender
resulting therefrom in accordance with Section 3.4. Upon the effective date of
such increase in the Aggregate Commitment, all Loans outstanding hereunder
(including any Loans made by the New Lenders on such date) shall be Floating
Rate Loans, subject to the Borrower's right to convert the same to Eurodollar
Loans on or after such date in accordance with the provisions of Section 2.9.
(e) Upon the effective date of any increase in the Aggregate
Commitment and the making of the Loans by the New Lenders in accordance with the
provisions of Section 2.5(d), each New Lender shall also be deemed to have
irrevocably and unconditionally purchased and received, without recourse or
warranty, from the Lenders party to this Agreement immediately prior to the
effective date of such increase, an undivided interest and participation in any
Facility Letter of Credit then outstanding, ratably, such that each Lender
(including each New Lender) holds a participation interest in each such Facility
Letter of Credit in proportion to the ratio that such Lender's Commitment (upon
the effective date of such increase in the Aggregate Commitment) bears to the
Aggregate Commitment as so increased.
(f) Nothing contained herein shall constitute, or otherwise be
deemed to be, a commitment or agreement on the part of any Lender to increase
its Commitment hereunder at any time or (except as provided in Section 2.5(c)) a
commitment or agreement on the part of the Borrower or the Agent to give or
grant any Lender the right to increase its Commitment hereunder at any time.
2.6. Minimum Amount of Each Advance. Each Advance (other than an
Advance consisting of, or made to repay, a Swing Line Loan) shall be in the
minimum amount of $2,000,000 (and in multiples of $1,000,000 if in excess
thereof). Each Advance to repay a Swing Line Loan shall be in the minimum amount
of $1,000,000.
2.7. Optional Principal Payments. The Borrower may at any time or from
time to time pay, without penalty or premium, all outstanding Floating Rate
Advances or Swing Line Loans, or, in a minimum aggregate amount of $2,000,000 or
any integral multiple of $1,000,000 in excess thereof, any portion of the
outstanding Floating Rate Advances upon one Business Day's prior notice to the
Agent. The Borrower may, upon three Business Days' prior notice to the Agent,
(a) pay, without penalty or premium, any Eurodollar Advance in full on the last
day of the Interest Period for such Eurodollar Advance, and (b) prepay any
Eurodollar Advance in full prior to the last day of the Interest Period for such
Eurodollar Advance, provided that the Borrower shall also pay at the time of
such prepayment all amounts payable with respect thereto pursuant to Section 3.4
hereof. The provisions of this Section 2.7 shall not apply to Swing Line Loans.
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2.8. Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable to each Advance from time to
time. The Borrower shall give the Agent irrevocable notice (a "Borrowing
Notice") not later than 10:00 a.m. (Chicago time) on the Borrowing Date of each
Floating Rate Advance and three Business Days before the Borrowing Date of each
Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans, in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XVI. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address. The provisions of this Section 2.8 shall not apply to Swing
Line Loans.
2.9. Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances. Each Eurodollar Advance
shall continue as a Eurodollar Advance until the end of the then applicable
Interest Period therefor, at which time such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance unless the Borrower shall
have given the Agent a Conversion/Continuation Notice requesting that, at the
end of such Interest Period, such Eurodollar Advance either continue as a
Eurodollar Advance for the same or another Interest Period or be repaid. Subject
to the terms of Section 2.6, the Borrower may elect from time to time to convert
all or any part of an Advance of any Type into any other Type or Types of
Advances; provided that any conversion of any Eurodollar Advance may be made on,
and only on, the last day of the Interest Period applicable thereto. The
Borrower shall give the Agent irrevocable notice (a "Conversion/Continuation
Notice") of each conversion of an Advance or continuation of a Eurodollar
Advance not later than 10:00 a.m. (Chicago time) at least one Business Day, in
the case of a conversion into a Floating Rate Advance, or three Business Days,
in the case of a conversion into or continuation of a Eurodollar Advance, prior
to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a
conversion into or continuation of a Eurodollar Advance, the
duration of the Interest Period applicable thereto.
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2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section 2.9 to but excluding
the date it becomes due or is converted into a Eurodollar Advance pursuant to
Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such day.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate or in the Applicable Floating Rate Margin. Each Eurodollar
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Eurodollar Advance.
No Interest Period may end after the Facility Termination Date.
2.11. Determination of Applicable Margins and Applicable Commitment
Rate. (a) The Applicable Margins and the Applicable Commitment Rate shall be
determined by reference to the Senior Debt Rating in accordance with the
following table:
<TABLE>
<CAPTION>
Applicable Applicable
Senior Debt Eurodollar Floating Rate Applicable
Rating Margin (%) Margin (%) Commitment Rate (%)
- ----------- ------------ -------------- -------------------
<S> <C> <C> <C>
BBB-/Baa3 or 0.75 0 0.20
higher
BB+/Ba1 0.95 0 0.25
BB/Ba2 1.15 0 0.30
BB-/Ba3 1.35 0.10 0.35
Lower or no 1.55 0.30 0.40
Senior Debt
Rating
</TABLE>
(b) The Applicable Floating Rate Margin and the Applicable
Commitment Rate shall be adjusted, as applicable from time to time, effective on
the first Business Day after any change in the Senior Debt Rating to the extent
that such change in the Senior Debt Rating requires a corresponding change in
the Applicable Floating Rate Margin. The Applicable Eurodollar Margin in respect
of any Eurodollar Advance shall be adjusted, as applicable from time to time,
effective on the first day of the Interest Period for any Eurodollar Advance
after any change in the Senior Debt Rating to the extent that such change in the
Senior Debt Rating requires a corresponding change in the Applicable Eurodollar
Margin.
2.12. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8, 2.9 or 2.10, during the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 11.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. Notwithstanding anything to
the contrary contained in Section 2.8, 2.9 or 2.10, during the continuance of an
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 11.2 requiring unanimous consent of
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<PAGE> 31
the Lenders to changes in interest rates), declare that no Advance may be made
as or converted into a Eurodollar Advance. During the continuance of a Default,
the Required Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 11.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that (i) each Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 2% per annum and (ii) each Floating Rate
Advance shall bear interest at a rate per annum equal to the Floating Rate
otherwise applicable to the Floating Rate Advance plus 2% per annum.
2.13. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XVI, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (local time at the place of
receipt) on the date when due, and shall be applied ratably by the Agent among
the Lenders, except that payments of Swing Line Loans shall be made solely to
the Swing Line Bank. Each payment delivered to the Agent for the account of any
Lender shall be delivered promptly by the Agent to such Lender in the same type
of funds that the Agent received at its address specified pursuant to Article
XVI or at any Lending Installation specified in a notice received by the Agent
from such Lender. If the Agent receives, for the account of a Lender, a payment
from the Borrower and fails to remit such payment to the Lender on the Business
Day such payment is received (if received by noon by the Agent) or on the next
Business Day (if received after noon by the Agent), the Agent shall pay to such
Lender interest on such payment at a rate per annum equal to the Federal Funds
Effective Rate for each day for which such payment is so delayed. The Agent is
hereby authorized to charge the account of the Borrower maintained with Bank One
for each payment of principal, interest and fees as it becomes due hereunder
(other than interest payable in accordance with the immediately preceding
sentence).
2.14. Notes; Telephonic Notices. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so record
shall not affect the Borrower's obligations under such Note. The Borrower hereby
authorizes the Lenders and the Agent to extend, convert or continue Advances,
effect selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Agent or any Lender in good faith
believes to be acting on behalf of the Borrower. The Borrower agrees to deliver
promptly to the Agent a written confirmation, if such confirmation is requested
by the Agent or any Lender, of each telephonic notice signed by an Authorized
Officer. If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Advance shall be payable on each Payment Date, commencing with the first
such date to occur after the date hereof, and on any date on which the Advance
is prepaid, whether due to acceleration or otherwise. Interest and commitment
fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local time
at the place of receipt). If any payment of principal of or interest on an
Advance shall become due on a day
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<PAGE> 32
which is not a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall be included in computing interest
in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions and Increases. Promptly after receipt thereof, the Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, Facility Increase
Notice and repayment notice received by it hereunder. The Agent will notify each
Lender of the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.18. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
the Borrower or such Lender, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until (but excluding) the date the
Agent recovers such amount at a rate per annum equal to (a) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (b) in the
case of payment by the Borrower, the interest rate applicable to the relevant
Advance.
2.19. Withholding Tax Exemption. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender (if any) that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver to
each of the Borrower and the Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either case that such
Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal taxes and an
Internal Revenue Service Form W-8 or W-9 entitling such Lender to receive a
complete exemption from United States tax backup withholding. Each Lender which
so delivers a Form 1001 or 4224 further undertakes to deliver to each of the
Borrower and the Agent two additional copies of such form (or a successor form)
on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments
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<PAGE> 33
thereto or extensions or renewals thereof as may be reasonably requested by the
Borrower or the Agent, in each case certifying that such Lender is entitled to
receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal taxes, unless an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender
advises the Borrower and the Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal tax. If a Lender
does not provide duly executed forms to the Borrower and the Agent within the
time periods set forth in the preceding paragraph, the Borrower or the Agent
shall withhold taxes from payments to such Lender at the applicable statutory
rates and the Borrower shall not be required to pay any additional amounts as a
result of such withholding. Upon the reasonable request of the Borrower or the
Agent, each Lender that has not provided the forms or other documents, as
provided above, on the basis of being a "United States person," shall submit to
Borrower and the Agent a certificate or other evidence to the effect that it is
such a "United States person."
2.20. Extension of Facility Termination Date. (a) The Borrower may
request a one-year extension of the Facility Termination Date by submitting a
request for an extension to the Agent no more than 27 months nor less than 25
months prior to the then scheduled Facility Termination Date. At the time of or
prior to the delivery of such request, the Borrower shall propose to the Agent
the amount of the fees that the Borrower would agree to pay with respect to such
one-year extension if approved by the Lenders (such request, together with the
fee proposal, being herein referred to as the "Extension Request"). Promptly
upon (but not later than five Business Days after) receipt of the Extension
Request, the Agent shall notify each Lender of the contents thereof and shall
request each Lender to approve the Extension Request. Each Lender approving the
Extension Request shall deliver its written approval no later than 30 days later
than the date of the Extension Request. If the approval of each of the Lenders
is received by the Agent within 30 days of the date of the Extension Request (or
as otherwise provided in Section 2.20(b)), the Agent shall promptly so notify
the Borrower, each Lender (including the Swing Line Bank) and the Issuing Bank,
and the Facility Termination Date shall be extended by one year, and in such
event the Borrower may thereafter request further extension(s) of the then
scheduled Facility Termination Date in accordance with this Section 2.20. If any
of the Lenders does not deliver to the Agent such Lender's written approval to
any Extension Request within the 30 days of the date of such Extension Request,
the Facility Termination Date shall not be extended, except as otherwise
provided in Section 2.20(b).
(b) If (i) any Lenders whose pro rata shares of the Aggregate
Commitment do not exceed (in the aggregate) 20% of the Aggregate Commitment
("Rejecting Lenders") shall not approve an Extension Request, (ii) all rights
and obligations of such Rejecting Lenders under this Agreement and under the
other Loan Documents (including, without limitation, their Commitment and all
Loans owing to them) shall have been assigned, within 90 days following such
Extension Request, in accordance with Section 2.21, to one or more Replacement
Lenders who shall have approved in writing such Extension Request at the time of
such assignment, and (iii) no other Lender shall have given written notice to
the Agent of such Lender's withdrawal of its approval of the Extension Request,
the Agent shall promptly so notify the Borrower, each Lender and the Issuing
Bank and the Facility Termination Date shall be extended by one year,
26
<PAGE> 34
and in such event the Borrower may thereafter request further extension(s) as
provided in Section 2.20(a).
(c) Within ten days of the Agent's notice to the Borrower that
all of the Lenders have approved an Extension Request (whether pursuant to
Section 2.20(a) or 2.20(b)), the Borrower shall pay to the Agent for the account
of each Lender the applicable extension fees specified in the Extension Request.
2.21. Replacement of Certain Lenders. In the event a Lender (the
"Affected Lender") shall have requested compensation from the Borrower under
Sections 3.1 or 3.2 to cover additional costs incurred by such Lender that are
not being incurred generally by the other Lenders or shall have delivered a
notice pursuant to Section 3.3 that such Affected Lender is unable to extend
Eurodollar Loans for reasons not generally applicable to the other Lenders or
such Affected Lender is a Rejecting Lender pursuant to Section 2.20, then, in
any such case, the Borrower or the Agent may make written demands on such
Affected Lender (with a copy to the Agent in the case of a demand by the
Borrower and a copy to the Borrower in the case of a demand by the Agent) for
the Affected Lender to assign, and such Affected Lender shall use its best
efforts to assign, pursuant to one or more duly executed assignment agreements
in substantially the form provided for in Section 15.3.1, within five Business
Days after the date of such demand, to one or more financial institutions that
comply with the provisions of Section 15.3, and if selected by the Borrower,
that are reasonably acceptable to the Agent (each, a "Replacement Lender"), all
of such Affected Lender's rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, its Commitment and all
Loans owing to it) in accordance with Section 15.3. The Agent agrees, upon the
occurrence of such events with respect to an Affected Lender and upon written
request of the Borrower, to use its reasonable efforts to obtain the commitments
from one or more financial institutions to act as a Replacement Lender. Further,
with respect to such assignment, the Affected Lender shall concurrently receive,
in cash, all amounts due and owing to the Affected Lender hereunder or under any
other Loan Document, including without limitation the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
Sections 3.1 and 3.2 with respect to such Affected Lender and all fees payable
to such Affected Lender hereunder; provided that, upon such Affected Lender's
replacement, such Affected Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Article III and Section 12.7, as well
as to any fees accrued hereunder and not yet paid, and shall continue to be
obligated under Section 13.8 with respect to obligations and liabilities
accruing prior to the replacement of such Affected Lender.
2.22. Swing Line. (a) The Swing Line Bank agrees, on the terms and
conditions hereinafter set forth, to make loans ("Swing Line Loans") to the
Borrower from time to time during the period from the date of this Agreement, up
to but not including the fifth (5th) day prior to the Facility Termination Date,
in an aggregate principal amount not to exceed at any time outstanding the
lesser of (i) the Swing Line Commitment or (ii) the Swing Line Bank's Available
Credit.
(b) Each Swing Line Loan shall be in an amount not less than
One Million Dollars
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($1,000,000) and, if in excess thereof, in integral multiples of One Million
Dollars ($1,000,000). Within the limits of the Swing Line Commitment, the
Borrower may borrow, repay and reborrow under this Section 2.22.
(c) The Borrower shall give the Swing Line Bank (and if the
Swing Line Bank is not also the Agent, the Agent) a Borrowing Notice requesting
a Swing Line Loan not later than 1:00 p.m. (Chicago time) on the Business Day of
such Swing Line Loan, specifying the amount of such requested Swing Line Loan.
Each such Borrowing Notice shall be accompanied by a Borrowing Base Certificate
dated as of the date of such Borrowing Notice (and by the Borrowing Notice
provided for in Section 2.22(d)). All Borrowing Notices given by the Borrower
under this Section 2.22(c) shall be irrevocable. Upon satisfaction of the
applicable conditions set forth in Section 5.2, the Swing Line Bank will make
the Swing Line Loan available to the Borrower in immediately available funds by
crediting the amount thereof to the Borrower's account with the Swing Line Bank.
If the Swing Line Bank is not also the Agent, the Swing Line Bank shall not
advance the Swing Line Loan unless and until the Agent shall have confirmed (by
telephonic notice) that such applicable conditions have been satisfied.
(d) Each Swing Line Loan shall be paid in full on or before
the third Business Day following the making of such Swing Line Loan and, if not
so paid by the Borrower, shall be paid in full from the proceeds of an Advance
made pursuant to Section 2.1 on the third Business Day following the making of
such Swing Line Loan. Each Borrowing Notice given by the Borrower under Section
2.22(c) shall include, or if it does not include, shall be deemed to include an
irrevocable Borrowing Notice under Section 2.8 requesting the Lenders to make an
Advance, on or before the third Business Day following the making of such Swing
Line Loan, of the full amount of such Swing Line Loan, unless such Swing Line
Loan is sooner paid in full by the Borrower.
(e) Provided that the applicable conditions set forth in
Section 5.2 shall have been satisfied at the time of the making of such Swing
Line Loan, the Lenders irrevocably agree to make the Advance provided for in
Section 2.22(d), notwithstanding any subsequent failure to satisfy such
conditions or any other facts or circumstances including (without limitation)
the existence of a Default.
2.23. Amounts Payable Under Original Agreement. (a) On the Effective
Date, each Lender ("Funding Lender") that is not party to the Original Agreement
or whose Commitment hereunder exceeds (on a pro rata basis) its maximum
"Commitment" under the Original Agreement shall make a payment to the Agent in
an amount sufficient, upon the application of such payments by all such Funding
Lenders to the reduction of the outstanding advances under the Original
Agreement held by the Lenders that are not Funding Lenders, to cause the
principal amount outstanding under the Loans by all Lenders hereunder as at the
Effective Date to be in the proportion to the ratio that such Lender's
Commitment (upon the Effective Date) bears to the Aggregate Commitment. The
Borrower hereby irrevocably authorizes each Funding Lender to fund to the Agent
the payment required to be made pursuant to the immediately preceding sentence
for application to the reduction of the outstanding advances under the Original
Agreement held by the other Lenders, and each such payment shall constitute a
Loan hereunder, provided that such Loans shall not increase the aggregate amount
of all Loans outstanding hereunder on the Effective Date to an amount exceeding
the aggregate amount outstanding under the Original Agreement immediately prior
thereto. If, as a result of the repayment of the
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Advances provided for in this Section 2.23(a), any payment of a Eurodollar
Advance occurs on a day which is not the last day of the applicable Interest
Period under the Original Agreement, the Borrower will pay to the Agent for the
benefit of the Lenders that were party to the Original Agreement any loss or
cost incurred by such Lender resulting therefrom in accordance with Section 3.4
of the Original Agreement. Upon the Effective Date, all Loans outstanding
hereunder (including any Loans made by the Lenders on such date) shall be
Floating Rate Loans, subject to the Borrower's right to convert the same to
Eurodollar Loans on or after such date in accordance with the provisions of
Section 2.9.
(b) Borrower hereby agrees to pay to the Agent, for the
benefit of the Lenders that were party to the Original Agreement, the amount of
all interest (if any) that has accrued but not been paid under the Original
Agreement through (but excluding) the Effective Date, all commitment fees that
have accrued but not been paid under the Original Agreement through (but
excluding) the Effective Date and all "Facility Letter of Credit Fees" (if any)
that have accrued but not been paid under the Original Agreement through (but
excluding) the Effective Date, all of which amounts shall be paid by the
Borrower on the date or dates on which such amounts would have been due and
payable under the terms of the Original Agreement. The provisions of this
Section 2.23 shall not increase or decrease the Borrower's obligations with
respect to interest, commitment fees or "Facility Letter of Credit Fees" that
are accrued but not paid under the Original Agreement through the Effective
Date.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from the Borrower (excluding any taxes imposed on, or based
on, or determined by reference to the net income of any Lender
or applicable Lending Installation, including, without
limitation, franchise taxes, alternative minimum taxes and any
branch profits tax (collectively, "Excluded Taxes")), or any
taxes imposed on, or based on, or determined by reference to
or changes the basis of taxation of payments to any Lender in
respect of its Loans or other amounts due it hereunder (except
for Excluded Taxes),
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Rates), or
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(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining loans or reduces any amount
receivable by any Lender or any applicable Lending
Installation in connection with loans, or requires any Lender
or any applicable Lending Installation to make any payment
calculated by reference to the amount of loans held or
interest received by it, by an amount deemed material by such
Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans and its Commitment; provided, however, that the Borrower
shall not be required to increase any such amounts payable to any Lender (i) if
such Lender fails to comply with the requirements of Section 2.19 hereof or (2)
to the extent that such Lender determines, in its sole reasonable discretion,
that it can, after notice from the Borrower, through reasonable efforts,
eliminate or reduce the amount of tax liabilities payable (without additional
costs or expenses unless the Borrower agrees to bear such costs or expenses) or
other disadvantages or risks (economic or otherwise) to such Lender or the
Agent. If any Lender receives a refund in respect of any tax for which such
Lender has received payment from the Borrower hereunder, such Lender shall
promptly notify the Borrower of such refund and such Lender shall repay the
amount of such refund to the Borrower, provided that the Borrower, upon the
request of such Lender, agrees to return such refund (plus any penalties,
interest or other charges) to such Lender in the event such Lender is required
to repay such refund. The determination as to whether any Lender has received a
refund shall be made by such Lender and such determination shall be conclusive
absent manifest error.
3.2. Changes in Capital Adequacy Regulations. If a Lender or Issuing
Bank determines the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or Issuing Bank or any
corporation controlling such Lender or Issuing Bank is increased as a result of
a Change, then, within 15 days of demand by such Lender or Issuing Bank, the
Borrower shall pay such Lender or Issuing Bank the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or Issuing Bank determines is attributable
to this Agreement, its Loans or its obligation to make Loans hereunder, or its
issuance or maintenance of or participation in, or commitment to issue, to
maintain or to participate in, the Facility Letters of Credit hereunder (after
taking into account such Lender's or Issuing Bank's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender, Issuing Bank, Lending Installation or any
corporation controlling any Lender or Issuing Bank. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International
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Convergence of Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to the date of this
Agreement.
3.3. Availability of Types of Advances. If any Lender determines and
notifies the Agent that maintenance of any of such Lender's Eurodollar Loans at
a suitable Lending Installation would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, the Agent shall
suspend the availability of the affected Type of Advance and require any
Eurodollar Advances of the affected Type to be repaid; or if the Required
Lenders determine and notify the Agent that (i) deposits of a type or maturity
appropriate to match fund Eurodollar Advances are not available, the Agent shall
suspend the availability of the affected Type of Advance with respect to any
Eurodollar Advances made after the date of any such determination, or (ii) an
interest rate applicable to a Type of Advance does not accurately reflect the
cost of making a Eurodollar Advance of such Type, then, if for any reason
whatsoever the provisions of Section 3.1 are inapplicable, the Agent shall
suspend the availability of the affected Type of Advance with respect to any
Eurodollar Advance made after the date of any such determination.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain the Eurodollar Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Advances to reduce any liability of the Borrower to
such Lender under Sections 3.1 and 3.2 or to avoid the unavailability of a Type
of Advance under Section 3.3, so long as such designation is not disadvantageous
to such Lender. Each Lender or Issuing Bank shall deliver a written statement of
such Lender or Issuing Bank as to the amount due, if any, under Sections 3.1,
3.2 or 3.4. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender or Issuing Bank determined such amount and
shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Advance shall be calculated as though each Lender
funded its Eurodollar Advance through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Eurodollar Advance applicable to such Loan, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written
statement shall be payable on demand after receipt by the Borrower of the
written statement. The obligations of the Borrower under Sections 3.1, 3.2 and
3.4 shall survive payment of the Obligations and termination of this Agreement.
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ARTICLE IV
THE LETTER OF CREDIT FACILITY
4.1. Facility Letters of Credit. The Issuing Bank agrees, on the terms
and conditions set forth in this Agreement, to issue from time to time for the
account of the Borrower, through such offices or branches as it and the Borrower
may jointly agree, one or more Facility Letters of Credit in accordance with
this Article IV, during the period commencing on the Effective Date and ending
on the Business Day prior to the Facility Termination Date.
4.2. Limitations. No Issuing Bank shall issue, amend or extend, at any
time, any Facility Letter of Credit:
(i) if the aggregate maximum amount then available for drawing
under Letters of Credit issued by such Issuing Bank, after
giving effect to the Facility Letter of Credit or amendment or
extension thereof requested hereunder, shall exceed any limit
imposed by law or regulation upon such Issuing Bank;
(ii) if, after giving effect to the Facility Letter of Credit or
amendment or extension thereof requested hereunder, the
aggregate principal amount of the Facility Letter of Credit
Obligations would exceed $35,000,000;
(iii) that, in the case of the issuance of a Facility Letter of
Credit, is in, or in the case of an amendment of a Facility
Letter of Credit, increases the face amount thereof by, an
amount in excess of the then Aggregate Available Credit;
(iv) if, after giving effect to the Facility Letter of Credit or
amendment or extension thereof requested hereunder,
Consolidated Senior Debt Borrowings would exceed the Borrowing
Base as of the most recent Inventory Valuation Date;
(v) if such Issuing Bank receives written notice from the Agent at
or before noon (Chicago time) on the proposed Issuance Date of
such Facility Letter of Credit that one or more of the
conditions precedent contained in Sections 5.1 or 5.2, as
applicable, would not on such Issuance Date be satisfied,
unless such conditions are thereafter satisfied and written
notice of such satisfaction is given to such Issuing Bank by
the Agent;
(vi) that has an expiration date (taking into account any automatic
renewal provisions thereof) later than the Business Day
preceding the scheduled Facility Termination Date; or
(vii) that is in a currency other than U.S. Dollars.
4.3. Conditions. In addition to being subject to the satisfaction of
the conditions contained in Sections 5.1 and 5.2, as applicable, the issuance of
any Facility Letter of Credit is subject to the satisfaction in full of the
following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at such
times and in such manner as the Issuing Bank may reasonably
prescribe a Reimbursement Agreement and such other documents
and materials as may be reasonably required pursuant to the
terms thereof, and the proposed Facility Letter of Credit
shall be reasonably satisfactory to such Issuing Bank in form
and content; and
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(ii) as of the Issuance Date no order, judgment or decree of any
court, arbitrator or governmental authority shall enjoin or
restrain such Issuing Bank from issuing the Facility Letter of
Credit and no law, rule or regulation applicable to such
Issuing Bank and no directive from and governmental authority
with jurisdiction over the Issuing Bank shall prohibit such
Issuing Bank from issuing Letters of Credit generally or from
issuing that Facility Letter or Credit.
4.4. Procedure for Issuance of Facility Letters of Credit. (a) The
Borrower shall give the Issuing Bank and the Agent not less than 15 days' prior
written notice of any requested issuance of a Facility Letter of Credit under
this Agreement. Such notice shall specify (i) the stated amount of the Facility
Letter of Credit requested, (ii) the requested Issuance Date, which shall be a
Business Day, (iii) the date on which such requested Facility Letter of Credit
is to expire, which date shall be in compliance with the requirements of Section
4.2(vi), (iv) the purpose for which such Facility Letter of Credit is to be
issued, and (v) the Person for whose benefit the requested Facility Letter of
Credit is to be issued. At the time such request is made, the Borrower shall
also provide the Agent with a copy of the form of the Facility Letter of Credit
it is requesting be issued.
(b) Upon receipt of a request for issuance of a Facility
Letter of Credit in accordance with Section 4.4(a), the Agent shall promptly
deliver a copy of such request to the Lender then designated as Issuing Bank
pursuant to Section 4.10. Within 10 days after receipt of such request, such
Issuing Bank shall approve or disapprove, in its reasonable discretion, the
issuance of such requested Facility Letter of Credit, but the issuance of such
approved Facility Letter of Credit shall continue to be subject to the
provisions of this Article IV. The Issuing Bank shall use reasonable efforts to
notify the Borrower of any changes in the Issuing Bank's policies or procedures
that could reasonably be expected to affect adversely the Issuing Bank's
approval of requested Facility Letters of Credit.
(c) Not less than three nor more than five Business Days prior
to the issuance of a Facility Letter of Credit approved by the Issuing Bank as
provided in Section 4.4(b), the Borrower shall confirm in writing to the Agent
and to the Issuing Bank the intended Issuance Date and amount of such Facility
Letter of Credit. The Agent shall determine, as of the close of business on the
day it receives such written confirmation from the Borrower, whether the
issuance of such Facility Letter of Credit would be permitted under the
provisions of Sections 4.2(iii) and (iv) and, prior to the close of business on
the second Business Day after the Agent received such written confirmation from
the Borrower under Section 4.4(a), the Agent shall notify the Issuing Bank and
the Borrower (in writing or by telephonic notice confirmed promptly thereafter
in writing) whether issuance of the requested Facility Letter of Credit would be
permitted under the provisions of Sections 4.2(iii) and (iv). If the Agent
notifies the Issuing Bank and the Borrower that such issuance would be so
permitted, then, subject to the terms and conditions of this Article IV and
provided that the applicable conditions set forth in Sections 5.1 and 5.2 have
been satisfied, the Issuing Bank shall, on the requested Issuance Date, issue
the requested Facility Letter of Credit in accordance with the Issuing Bank's
usual and customary business practices. The Issuing Bank shall give the Agent
written notice, or telephonic notice confirmed promptly thereafter in writing,
of the issuance of a Facility Letter of Credit.
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(d) An Issuing Bank shall not extend or amend any Facility
Letter of Credit unless the requirements of this Section 4.4 are met as though a
new Facility Letter of Credit were being requested and issued.
(e) Any Lender may, but shall not be obligated to, issue to
the Borrower or any Subsidiary Letters of Credit (that are not Facility Letters
of Credit) for its own account, and at its own risk. None of the provisions of
this Article IV shall apply to any Letter of Credit that is not a Facility
Letter of Credit.
4.5. Duties of Issuing Bank. Any action taken or omitted to be taken by
an Issuing Bank under or in connection with any Facility Letter of Credit, if
taken or omitted in the absence of willful misconduct or gross negligence, shall
not put such Issuing Bank under any resulting liability to any Lender or,
assuming that such Issuing Bank has complied with the procedures specified in
Section 4.4, relieve any Lender of its obligations hereunder to such Issuing
Bank. In determining whether to pay under any Facility Letter of Credit, the
Issuing Bank shall have no obligation relative to the Lenders other than to
confirm that any documents required to be delivered under such Facility Letter
of Credit appear to have been delivered in compliance and that they appear to
comply on their face with the requirements of such Facility Letter of Credit.
4.6. Participation. (a) Immediately upon the Effective Date (in the
case of the Facility Letters of Credit outstanding on the Effective Date) and
immediately upon issuance after the Effective Date by an Issuing Bank of any
Facility Letter of Credit in accordance with Section 4.4, each Lender shall be
deemed to have irrevocably and unconditionally purchased and received from such
Issuing Bank, without recourse or warranty, an undivided interest and
participation (ratably in proportion to the ratio that such Lender's Commitment
bears to the Aggregate Commitment) in such Facility Letter of Credit (including,
without limitation, all obligations of the Borrower with respect thereto other
than amounts owing to such Issuing Bank under Section 3.2).
(b) In the event that an Issuing Bank makes any payment under
any Facility Letter of Credit and the Borrower shall not have repaid such amount
to such Issuing Bank on or before the date of such payment by such Issuing Bank,
such Issuing Bank shall promptly so notify the Agent, which shall promptly so
notify each Lender. Upon receipt of such notice, each Lender shall promptly and
unconditionally pay to the Agent for the account of such Issuing Bank the amount
of such Lender's share (ratably in proportion to the ratio that such Lender's
Commitment bears to the Aggregate Commitment) of such payment in same day funds,
and the Agent shall promptly pay such amount, and any other amounts received by
the Agent for such Issuing Bank's account pursuant to this Section 4.6(b), to
such Issuing Bank. If the Agent so notifies such Lender prior to 10:00 a.m.
(Chicago time) on any Business Day, such Lender shall make available to the
Agent for the account of such Issuing Bank such Lender's share of the amount of
such payment on such Business Day in same day funds. If and to the extent such
Lender shall not have so made its share of the amount of such payment available
to the Agent for the account of such Issuing Bank, such Lender agrees to pay to
the Agent for the account of such Issuing Bank forthwith on demand such amount,
together with interest thereon, for each day from the date such payment was
first due until the date such amount is paid to the Agent for the account of
such Issuing Bank, at the Federal Funds Effective Rate. The failure of any
Lender to make available to the Agent for the account of such Issuing Bank such
Lender's share of any such
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payment shall not relieve any other Lender of its obligation hereunder to make
available to the Agent for the account of such Issuing Bank its share of any
payment on the date such payment is to be made.
(c) The payments made by the Lenders to an Issuing Bank in
reimbursement of amounts paid by it under a Facility Letter of Credit shall
constitute, and the Borrower hereby expressly acknowledges and agrees that such
payments shall constitute, Advances hereunder and such payments shall for all
purposes be treated as Advances (notwithstanding that the amounts thereof may
not comply with the provisions of Section 2.6). Such Advances shall be Floating
Rate Advances, subject to the Borrower's rights under Article II hereof.
(d) Upon the request of the Agent or any Lender, an Issuing
Bank shall furnish to the requesting Agent or Lender copies of any Facility
Letter of Credit or Reimbursement Agreement to which such Issuing Bank is party
and such other documentation as may reasonably be requested by the Agent or the
Lender.
(e) The obligations of the Lenders to make payments to the
Agent for the account of an Issuing Bank with respect to a Facility Letter of
Credit shall be irrevocable, not subject to any qualification or exception
whatsoever and shall be made in accordance with, but not subject to, the terms
and conditions of this Agreement under all circumstances, including without
limitation the following:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against
a beneficiary named in a Facility Letter of Credit or
any transferee of any Facility Letter of Credit (or
any Person for whom any such transferee may be
acting), such Issuing Bank, the Agent, any Lender, or
any other Person, whether in connection with this
Agreement, any Facility Letter of Credit, the
transactions contemplated herein or any unrelated
transactions (including any underlying transactions
between the Borrower or any Subsidiary and the
beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document
presented under the Facility Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in
any respect of any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any
of the Loan Documents;
(v) any failure by the Agent or the Issuing Bank to make
any reports required pursuant to Section 4.8; or
(vi) the occurrence of any Default or Unmatured Default.
4.7. Compensation for Facility Letters of Credit. (a) The Borrower
agrees to pay to the Agent, in the case of each outstanding Facility Letter of
Credit, the Facility Letter of Credit
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Fee therefor, payable quarterly in arrears on the first day of each calendar
quarter from and after the Issuance Date of such Facility Letter of Credit and
payable for the portion of such quarter during which such Facility Letter of
Credit is outstanding. Facility Letter of Credit Fees shall be calculated, on a
daily basis for each day of the period to which such payment applies, for actual
days that the Facility Letter of Credit is outstanding during such period, on
the basis of a 360-day year. The Agent shall promptly remit such Facility Letter
of Credit Fees, when paid, to the Lenders (ratably in the proportion that each
Lender's Commitment bears to the Aggregate Commitment).
(b) An Issuing Bank shall have the right to receive solely for
its own account an issuance fee in the amount of 0.25% (per annum) of the face
amount of each Facility Letter of Credit issued by it, payable quarterly in
arrears on the first day of each calendar quarter from and after the Issuance
Date of any such Facility Letter of Credit (and calculated in the same manner as
Facility Letter of Credit Fees are calculated pursuant to Section 4.7(a)) and
such other amounts as the Borrower may agree, in writing, to pay to such Issuing
Bank for such Issuing Bank's out-of-pocket costs of issuing and servicing
Facility Letters of Credit.
4.8. Issuing Bank Reporting Requirements. Each Issuing Bank shall, no
later than the tenth day following the last day of each month, provide to the
Agent a schedule of the Facility Letters of Credit issued by it, in form and
substance reasonably satisfactory to the Agent, showing the Issuance Date,
account party, original face amount, amount (if any) paid thereunder, expiration
date and the reference number of each Facility Letter of Credit outstanding at
any time during such month and the aggregate amount (if any) payable by the
Borrower to such Issuing Bank during the month pursuant to Section 3.2. Copies
of such reports shall be provided promptly to each Lender by the Agent.
4.9. Indemnification; Nature of Issuing Bank's Duties. (a) In addition
to amounts payable as elsewhere provided in this Article IV, the Borrower hereby
agrees to protect, indemnify, pay and save the Agent and each Lender and Issuing
Bank harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys'
fees) arising from the claims of third parties against the Agent, Issuing Bank
or Lender as a consequence, direct or indirect, of (i) the issuance of any
Facility Letter of Credit other than, in the case of an Issuing Bank, as a
result of its willful misconduct or gross negligence, or (ii) the failure of an
Issuing Bank issuing a Facility Letter of Credit to honor a drawing under such
Facility Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
governmental authority.
(b) As among the Borrower, the Lenders, the Agent and the
Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or
misuse of Facility Letters of Credit by, the respective beneficiaries of such
Facility Letters of Credit. In furtherance and not in limitation of the
foregoing, neither the Issuing Bank nor the Agent nor any Lender shall be
responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of the Facility Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Facility Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective
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for any reason; (iii) for failure of the beneficiary of a Facility Letter of
Credit to comply fully with conditions required in order to draw upon such
Facility Letter of Credit; (iv) for errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any Facility Letter of
Credit or of the proceeds thereof; (vii) for the misapplication by the
beneficiary of a Facility Letter of Credit of the proceeds of any drawing under
such Facility Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of the Agent, the Issuing Bank and the Lenders
including, without limitation, any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority. None of the above shall affect, impair, or prevent the
vesting of any of the Issuing Bank's rights or powers under this subsection 4.9.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by an
Issuing Bank under or in connection with the Facility Letters of Credit or any
related certificates, if taken or omitted in good faith, shall not put such
Issuing Bank, the Agent or any Lender under any resulting liability to the
Borrower or relieve the Borrower of any of its obligations hereunder to any such
Person.
(d) Notwithstanding anything to the contrary contained in this
Section 4.9, the Borrower shall have no obligation to indemnify an Issuing Bank
under this Section 4.9 in respect of any liability incurred by such Issuing Bank
arising primarily out of the willful misconduct or gross negligence of such
Issuing Bank, as determined by a court of competent jurisdiction, or out of the
wrongful dishonor by such Issuing Bank of a proper demand for payment made under
the Facility Letters of Credit issued by such Issuing Bank, unless such dishonor
was made at the request of the Borrower.
4.10. Resignation of Issuing Bank. The Issuing Bank shall continue to
be the Issuing Bank unless and until (i) it shall have given the Borrower and
the Agent notice that it has elected to resign as Issuing Bank and (ii) a
replacement Issuing Bank shall have been designated and approved in writing by
the Agent and the Borrower. The resigning Issuing Bank shall continue to have
the rights and obligations of an Issuing Bank hereunder solely with respect to
Facility Letters of Credit theretofore issued by it notwithstanding the
designation of a replacement Issuing Bank hereunder), but upon such designation
of a replacement Issuing Bank, the resigning Issuing Bank shall not thereafter
issue any Facility Letters of Credit (unless such Lender shall again thereafter
be designated as Issuing Bank in accordance with the provisions of this Section
4.10).
4.11. Obligations of Issuing Bank and Other Lenders. Except to the
extent that a Lender shall have agreed to be designated as an Issuing Bank, no
Lender shall have any obligation to accept or approve any request for, or to
issue, amend or extend, any Letter of Credit, and the obligations of the Issuing
Bank to issue, amend or extend any Facility Letter of Credit are expressly
limited by and subject to the provisions of this Article IV.
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ARTICLE V
CONDITIONS PRECEDENT
5.1. Effective Date. The Effective Date of this Agreement shall not
occur, the Lenders shall not be required to make any additional Advance
hereunder, and the Issuing Bank shall not be required to issue any additional
Facility Letter of Credit hereunder, unless the Borrower has paid to the
Arranger the fees set forth in the letter agreement dated November 24, 1999
among the Agent, the Arranger and the Borrower, and the Borrower has furnished
to the Agent with sufficient copies for the Lenders the following:
(i) A copy of the certificate of incorporation of the Borrower,
together with all amendments, and a certificate of good
standing, all certified by the appropriate governmental
officer in the jurisdiction of incorporation.
(ii) A copy, certified by the Secretary or Assistant Secretary of
the Borrower and each Guarantor, of each such corporation's
Board of Directors' resolutions authorizing the execution of
the Loan Documents to which it is a party and (in the case of
the Borrower only) its by-laws.
(iii) Incumbency certificates, executed by the Secretary or
Assistant Secretary of the Borrower and each Guarantor,
identifying by name and title and bearing the signature of the
officers of such corporation authorized to sign the Loan
Documents to which it is a party.
(iv) A certificate, signed by an Authorized Officer, certifying
that, to the best of his knowledge, on the Effective Date, no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of Kaye, Scholer, Fierman, Hays & Handler,
LLP, counsel to the Borrower, addressed to the Agent and
Lenders in substantially the form of Exhibit "D" hereto.
(vi) A written opinion of Steven Lane, Director-Legal of the
Borrower, addressed to the Agent and the Lenders in
substantially the form of Exhibit "E" hereto.
(vii) A written opinion of Lord, Bissell & Brook, Illinois counsel
to the Borrower, addressed to the Agent and the Lenders in
substantially the form of Exhibit "F" hereto.
(viii) A Note payable to the order of each Lender in the amount of
its Commitment.
(ix) An Amended and Restated Guaranty duly executed by the
Guarantors in the form of Exhibit "G" hereto.
(x) An Amended and Restated Contribution Agreement duly executed
by the Guarantors in the form of Exhibit "H" hereto (the
"Contribution Agreement").
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(xi) An Amended and Restated Subordination Agreement duly executed
by the Non-Borrowing Subsidiaries in the form of Exhibit "I"
hereto (the "Subordination Agreement").
(xii) Such other documents as any Lender or Issuing Bank may have
reasonably requested.
On or promptly after the Effective Date, each Lender that is
holding a promissory note under the Original Agreement shall cancel and return
to the Borrower the promissory note held by such Lender under the Original
Agreement (or a "lost note affidavit and indemnity" reasonably acceptable to the
Borrower).
5.2. Each Advance. The Lenders shall not be required (except as
otherwise provided in Section 2.22(e) and 4.6(b) and except for Loans made by
the New Lenders pursuant to Section 2.5(c)) to make any Advance (other than the
conversion of an Advance of one Type to an Advance of another Type that does not
increase the aggregate amount of outstanding Advances) and the Swing Line Bank
shall not be obligated to make a Swing Line Loan, unless on the applicable
Borrowing Date, and an Issuing Bank shall not be required to issue, amend or
extend a Facility Letter of Credit, unless on the applicable Issuance Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article VI are
true and correct in all material respects as of such Borrowing
Date or Issuance Date except to the extent any such
representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty
shall be true and correct in all material respects on and as
of such earlier date and except to the extent that any such
representation or warranty relates to changes otherwise
permitted by this Agreement.
(iii) After the making of such Advance or issuance of such Facility
Letter of Credit, Consolidated Senior Debt Borrowings shall
not exceed the Borrowing Base (determined as of the most
recent Inventory Valuation Date).
(iv) The Borrower shall have delivered to the Agent, not more than
three (3) Business Days prior to the applicable Borrowing Date
or Issuance Date or, in the case of a Swing Line Loan, on the
Borrowing Date, a duly completed certificate in substantially
the form of Exhibit "J" hereto.
(v) All legal matters incident to (A) the making of such Advance
shall be reasonably satisfactory to the Lenders and their
counsel and (B) the issuance of such Facility Letter of Credit
shall be reasonably satisfactory to the Agent, such Issuing
Bank and their respective counsel.
Each Borrowing Notice with respect to each such Advance and each
request for a Facility Letter of Credit shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections 5.2(i) and
(ii) have been satisfied.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
6.1. Existence and Standing. The Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted (except to the
extent that a failure to maintain such existence, good standing or authority
would not reasonably be expected to have and does not have a Material Adverse
Effect). Each of the Significant Guarantors is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted (except to the extent that a
failure to maintain such existence, good standing or authority would not
reasonably be expected to have and does not have a Material Adverse Effect).
6.2. Authorization and Validity. The Borrower has the corporate power
and authority to execute and deliver the Loan Documents to which it is a party
and to perform its obligations hereunder and thereunder. The execution and
delivery by the Borrower of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized and the Loan
Documents to which it is a party constitute legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with their terms,
subject to bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity. Each of the
Guarantors has the corporate power and authority to execute and deliver the
Guaranty and to perform its obligations thereunder. The execution and delivery
by the Guarantors of the Guaranty and the performance of their obligations
thereunder have been duly authorized, and the Guaranty constitutes the legal,
valid and binding obligations of the Guarantors enforceable against the
Guarantors in accordance with its terms, subject to bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and
general principles of equity.
6.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents or by the Significant Guarantors
of the Guaranty, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof or thereof will violate in any
material respect any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of the Significant Guarantors or
the Borrower's or any Significant Guarantor's certificate of incorporation or
by-laws or the provisions of any indenture, instrument or agreement to which the
Borrower or any Significant Guarantor is a party or is subject, or by which it,
or its Property, is bound, or conflict with or constitute a default thereunder,
or result in the creation or imposition of any Lien in, of or on the Property of
the Borrower or any Significant Guarantor pursuant to the terms of any such
indenture, instrument or agreement. Except as set forth on Schedule "6.3"
hereto, no order, consent, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with the execution,
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delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents or the Guaranty.
6.4. Financial Statements. The December 31, 1998 consolidated financial
statements of the Borrower and its Subsidiaries delivered to the Lenders fairly
present, in all material respects, the consolidated financial condition of the
Borrower and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended. The September 30, 1999 unaudited condensed
consolidated financial statements of the Borrower and its Subsidiaries delivered
to the Lenders were prepared pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnotes normally
included in annual financial statements prepared in accordance with GAAP have
been condensed or omitted pursuant to those rules and regulations. Such
statements fairly present, in all material respects, the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then ended, subject
to normal adjustments and the absence of footnotes.
6.5. Material Adverse Effect. Since the date of the financial
statements (whether quarterly or annual) of the Borrower that have most recently
been delivered by the Borrower to the Agent, there has been no change in the
business, Property, condition (financial or otherwise) or results of operations
of the Borrower and the Significant Guarantors (taken as a whole) that has had
or would reasonably be expected to have a Material Adverse Effect.
6.6. Taxes. The Borrower and the Significant Guarantors have filed all
United States federal income tax returns and all other material tax returns
which are required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Borrower or any such
Significant Guarantor, except such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided. No tax Liens have
been filed and no claims are being asserted with respect to any such taxes. The
charges, accruals and reserves on the books of the Borrower and the Significant
Guarantors in respect of any taxes or other governmental charges are adequate in
accordance with GAAP.
6.7. Litigation and Contingent Obligations. Except as set forth on
Schedule "6.7" hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any
Authorized Officer, threatened against or affecting the Borrower or any
Significant Guarantor that has had or would reasonably be expected to have a
Material Adverse Effect. Other than any liability incident to such litigation,
arbitration or proceedings, the Borrower and the Significant Guarantors have no
material contingent obligations not provided for or disclosed in the financial
statements of the Borrower that have been most recently delivered by the
Borrower to the Agent or the financial statements of the Borrower for the year
ended December 31, 1998 that has had or would reasonably be expected to have a
Material Adverse Effect.
6.8. Subsidiaries. Schedule "6.8" hereto contains an accurate list of
all of the Subsidiaries of the Borrower, setting forth their respective
jurisdictions of incorporation or formation and the percentage of their
respective capital stock or partnership interests owned by the Borrower or its
Subsidiaries. All of the issued and outstanding shares of capital stock of such
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Subsidiaries that are corporations have been duly authorized and validly issued
and are fully paid and non-assessable.
6.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $5,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans in excess of $5,000,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other member of the Controlled
Group has withdrawn from any Multiemployer Plan or initiated steps to do so, and
no steps have been taken to terminate any Plan.
6.10. Accuracy of Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower or any Guarantor to
the Agent or any Lender for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of the Borrower or any Guarantor to the
Agent or any Lender will be, true and accurate (taken as a whole), in all
material respects, on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such time.
6.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
6.12. Material Agreements. Neither the Borrower nor any Significant
Guarantor is in default, which default has had or would reasonably be expected
to have a Material Adverse Effect, in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in (i) any
agreement to which it is a party, or (ii) any agreement or instrument evidencing
or governing Indebtedness.
6.13. Labor Disputes and Acts of God. Neither the business nor the
Property of the Borrower or of any Significant Guarantor is affected by any
fire, explosion, accident, strike, lockout, or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy, or other
casualty (whether or not covered by insurance), which has had or would
reasonably be expected to have a Material Adverse Effect.
6.14. Ownership and Liens. The Borrower and each of the Significant
Guarantors have title to, or valid leasehold interests in, all of their
respective properties and assets, real and personal, including the properties
and assets and leasehold interests reflected in the financial statements
referred to in Section 6.4 (except to the extent that (i) such properties or
assets have been disposed of in the ordinary course of business or (ii) the
failure to have such title has not had and would not reasonably be expected to
have a Material Adverse Effect) and none of the properties and assets owned by
the Borrower or any Significant Guarantor and none of their leasehold interests
is subject to any Lien, except as may be permitted pursuant to Section 8.8.
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6.15. Operation of Business. The Borrower and each of the Significant
Guarantors possess all licenses, permits, franchises, patents, copyrights,
trademarks, and trade names, or rights thereto, to conduct their respective
businesses substantially as now conducted, and as presently proposed to be
conducted, with such exceptions as have not had and would not reasonably be
expected to have a Material Adverse Effect.
6.16. Laws; Environment. Except as set forth on Schedule "6.16" hereto,
the Borrower and each of the Significant Guarantors have duly complied, and
their businesses, operations and Property are in compliance, in all material
respects, with the provisions of all federal, state, and local statutes, laws,
codes, and ordinances and all rules and regulations promulgated thereunder
(including without limitation those relating to the environment, health and
safety). Except as set forth on Schedule "6.16" hereto, the Borrower and each of
the Significant Guarantors have been issued all required federal, state, and
local permits, licenses, certificates, and approvals relating to (1) air
emissions; (2) discharges to surface water or groundwater; (3) solid or liquid
waste disposal; (4) the use, generation, storage, transportation, or disposal of
toxic or hazardous substances or hazardous wastes (intended hereby and hereafter
to include any and all such materials listed in any federal, state, or local
law, code, or ordinance and all rules and regulations promulgated thereunder as
hazardous); or (5) other environmental, health or safety matters. Except in
accordance with a valid governmental permit, license, certificate or approval or
as set forth on Schedule "6.16" hereto, to the best knowledge of the Borrower,
there has been no material emission, spill, release, or discharge into or upon
(1) the air; (2) soils, or any improvements located thereon; (3) surface water
or groundwater; or (4) the sewer, septic system or waste treatment, storage or
disposal system servicing any Property of the Borrower or any Significant
Guarantor, of any toxic or hazardous substances or hazardous wastes at or from
such Property. There has been no written complaint, order, directive, claim,
citation, or notice by any governmental authority or any person or entity with
respect to violations of law or damage by reason of the Borrower's or any
Significant Guarantor's (1) air emissions; (2) spills, releases, or discharges
to soils or improvements located thereon, surface water, groundwater or the
sewer, septic system or waste treatment, storage or disposal systems servicing
any Property; (3) solid or liquid waste disposal; (4) use, generation, storage,
transportation, or disposal of toxic or hazardous substances or hazardous waste;
or (5) other environmental, health or safety matters affecting the Borrower or
any Significant Guarantor or its business, operation or Property. Except as set
forth on Schedule "6.16" hereto, neither the Borrower nor any Significant
Guarantor has any material Indebtedness, obligation, or liability, absolute or
contingent, matured or not matured, with respect to the storage, treatment,
cleanup, or disposal of any solid wastes, hazardous wastes, or other toxic or
hazardous substances (including without limitation any such indebtedness,
obligation, or liability with respect to any current regulation, law or statute
regarding such storage, treatment, cleanup, or disposal). A matter will not
constitute a breach of this Section 6.16 unless it is reasonably likely to
result in costs or liabilities to the Borrower or a Significant Guarantor in
excess of $2,500,000 in the aggregate.
6.17. Investment Company Act. Neither the Borrower nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
6.18. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of
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a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
6.19. Subordinated Indebtedness. The Obligations constitute senior
indebtedness which is entitled to the benefits of the subordination provisions
of the Subordinated Notes and all other outstanding Subordinated Indebtedness of
the Borrower and any Guarantors.
6.20. Year 2000. The Borrower has made an assessment of the Year 2000
Issues and has a reasonable program for remediating the Year 2000 Issues on a
timely basis. Based on such assessment and program, the Borrower does not
reasonably anticipate that Year 2000 Issues will have a Material Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
7.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with GAAP, and furnish to the Lenders:
(i) Within 90 days after the close of each fiscal year, an
unqualified audit report certified by nationally recognized
independent certified public accountants, reasonably
acceptable to the Lenders, prepared in accordance with GAAP on
a consolidated basis for the Borrower and its Subsidiaries,
including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and
a statement of cash flows, accompanied by (a) any management
letter prepared by said accountants, and (b) a certificate of
said accountants that, in the course of their examination
necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Unmatured Default, or
if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status
thereof.
(ii) Within 90 days after the close of each fiscal year, unaudited
balance sheets as of the end of such fiscal year for each of
the operating divisions of the Borrower and a related profit
and loss statement for each Subsidiary, all certified by an
Authorized Officer.
(iii) Within 45 days after the close of the first three quarterly
periods of each fiscal year, for the Borrower and its
Subsidiaries, on a consolidated condensed basis, unaudited
balance sheets as at the close of each such period and a
related profit and loss statement for the period from the
beginning of such fiscal year to the end of such quarter, all
certified by an Authorized Officer.
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(iv) As soon as available, but in any event not later than 10 days
prior to the beginning of each fiscal year, a copy of the
business plan (including a consolidated balance sheet, income
statement and cash flow statement) of the Borrower and its
Subsidiaries for such fiscal year.
(v) Within 45 days of the end of each of the first three quarterly
periods of each fiscal year, a quarterly variance analysis
comparing actual quarterly results versus projected quarterly
results for the fiscal quarter most recently ended (including
consolidated income statements of the Borrower and its
Subsidiaries, an analysis of revenues, Housing Unit Closings
and operating profits on a consolidated basis, unaudited
income statements and balance sheets (by operating division)
for such quarter, and such other items as are reasonably
requested by any of the Lenders), together with a written
explanation of material variances.
(vi) Within 90 days after the end of each fiscal year, a variance
analysis comparing actual annual results versus the business
plan for the fiscal year most recently ended (including
consolidated income statements of the Borrower and its
Subsidiaries, an analysis of revenues, Housing Unit Closings
and operating profits on a consolidated basis, unaudited
income statements and balance sheets (by operating division)
for such fiscal year, and such other items as are reasonably
requested by any of the Lenders), together with a written
explanation of material variances.
(vii) Within 10 Business Days after the end of each calendar month,
a Borrowing Base Certificate of an Authorized Officer, with
respect to the Inventory Valuation Date occurring on the last
day of such calendar month.
(viii) Within 45 days after the end of each quarterly period of each
fiscal year, a certificate of an Authorized Officer certifying
the Housing Units as at such date, which lists (by operating
division) the Housing Units, designated in the same categories
as are identified in the Borrower's report dated June 30,
1998; such summary shall include a delineation of sold or
unsold items in each category.
(ix) Within 45 days after the end of each quarterly period of each
fiscal year, a certificate of an Authorized Officer certifying
as of such date (by operating division) the book values of raw
land held for development or sale, Entitled Land, Land under
Development, Finished Lots, Finished Lots on the books in
excess of nine months, Housing Units, Housing Units Under
Contract and Inventory Housing Units.
(x) Within 45 days after the end of each of the first three
quarterly periods, and within ninety (90) days after the end,
of each fiscal year, a certificate of an Authorized Officer of
the Borrower in the form of Exhibit "K" hereto.
(xi) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer
Plan, certified as correct by an actuary
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enrolled under ERISA (which requirement may be satisfied by
the delivery of the most recent actuarial valuation of each
such Single Employer Plan).
(xii) As soon as possible and in any event within ten days after the
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by an Authorized
Officer, describing said Reportable Event and the action which
the Borrower proposes to take with respect thereto.
(xiii) As soon as possible, and in any event within thirty (30) days
after the Borrower knows or has reason to know that any
circumstances exist that constitute grounds entitling the PBGC
to institute proceedings to terminate a Plan subject to ERISA
with respect to the Borrower or any member of the Controlled
Group and promptly but in any event within two (2) Business
Days of receipt by the Borrower or any member of the
Controlled Group of notice that the PBGC intends to terminate
a Plan or appoint a trustee to administer the same, and
promptly but in any event within five (5) Business Days of the
receipt of notice concerning the imposition of withdrawal
liability in excess of $500,000 with respect to the Borrower
or any member of the Controlled Group, a certificate of an
Authorized Officer setting forth all relevant details of such
event and the action which the Borrower proposes to take with
respect thereto.
(xiv) Promptly after the furnishing thereof, copies of any
statement, report, document, notice, certificate, and
correspondence furnished to any other party pursuant to the
terms of any indenture (including the Senior Indentures),
loan, credit, or similar agreement with respect to any
Indebtedness in excess of $1,000,000 or to any rating agency
and not otherwise required to be furnished to the Lenders
pursuant to any other provision of this Section 7.1.
(xv) Promptly after the sending or filing thereof, copies of all
proxy statements, financial statements, and reports which the
Borrower or any Significant Guarantor sends to its
stockholders, and copies of all regular, periodic, and special
reports, and all registration statements which the Borrower or
any Significant Guarantor files with the Securities and
Exchange Commission or any governmental authority which may be
substituted therefor, or with any national securities
exchange.
(xvi) Promptly after the commencement thereof, notice of all
actions, suits, and proceedings before any court or
governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, affecting the Borrower
or any Significant Guarantor (a) which, if determined
adversely to the Borrower or such Significant Guarantor, could
reasonably be expected to have a Material Adverse Effect or
(b) in which liability in excess of $2,500,000 (in the
aggregate with respect to any action, suit or proceeding) is
asserted against the Borrower or any Significant Guarantor.
(xvii) As soon as possible and in any event within ten days after
receipt by the Borrower or any Significant Guarantor, a copy
of (a) any written notice or claim to the effect that the
Borrower or any Significant Guarantor is or may be liable to
any
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Person as a result of the release of any toxic or hazardous
waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the
Borrower or any Guarantor which, in the case of either (a) or
(b), could reasonably be expected to have a Material Adverse
Effect or could result in liability to the Borrower or any
Significant Guarantor in excess of $2,500,000 (in the
aggregate with respect to any notice or claim).
(xviii) Such other information (including non-financial information)
as the Agent may from time to time reasonably request.
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), to repay outstanding Swing Line Loans and other Advances and to
engage in the transactions otherwise permitted by this Agreement. Except as
permitted by Sections 8.6, 8.9 and 8.11 or 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 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 outstanding amount of 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 June 30, 1998; provided that the Borrower and
the Guarantors may (i) make advances or loans to or other Investments in
Non-Borrowing Subsidiaries (and use the proceeds of Advances to make the same)
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 and the
Guarantors after June 30, 1998 which have not been repaid to such Non-Borrowing
Subsidiaries and (ii) make loans to or other Investments in the Non-Borrowing
Subsidiaries permitted under Section 8.6.
7.3. Notice of Default. The Borrower will, and will cause each
Significant Guarantor to, give prompt notice in writing to the Lenders of the
occurrence of (i) any Default or Unmatured Default and (ii) any other
development, financial or otherwise, that has had or would be reasonably
expected to have a Material Adverse Effect.
7.4. Conduct of Business. Except as otherwise permitted under this
Agreement, the Borrower will, and will cause each Significant Guarantor to,
carry on and conduct business in the same general manner and in substantially
the same fields of enterprise as presently conducted and to do all things
necessary to remain duly incorporated, validly existing and in good standing as
a domestic corporation in their respective jurisdictions of incorporation (or,
in the case of any Guarantors that are partnerships or other non-corporate
entities, duly formed and validly existing in their respective jurisdictions of
formation) and maintain all requisite authority to conduct business in each
jurisdiction in which business is conducted; provided, however, that nothing
contained herein shall prohibit the dissolution of any Guarantor as long as the
Borrower or another Guarantor succeeds to the assets, liabilities and business
of the dissolved Guarantor.
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7.5. Taxes. The Borrower will, and will cause each Significant
Guarantor to, pay when due all taxes, assessments and governmental charges and
levies upon them or their income, profits or Property, except those that are
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves have been set aside in accordance with GAAP.
7.6. Insurance. The Borrower will, and will cause each Significant
Guarantor to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks as is
consistent with sound business practice, and the Borrower will furnish to any
Lender upon request full information as to the insurance carried.
7.7. Compliance with Laws. The Borrower will, and will cause each
Significant Guarantor to, comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject,
except to the extent that the failure to do so would not reasonably be expected
to have and does not have a Material Adverse Effect.
7.8. Maintenance of Properties. The Borrower will, and will cause each
Significant Guarantor to, do all things necessary to maintain, preserve, protect
and keep its Property in good repair, working order and condition, except to the
extent that the failure to do so would not reasonably be expected to have and
does not have a Material Adverse Effect.
7.9. Inspection. The Borrower will, and will cause each Guarantor to,
permit the Lenders, by their respective representatives and agents, to inspect
any of the Property, corporate (or partnership) books and financial records of
the Borrower and the Guarantors to examine and make copies of the books of
accounts and other financial records of the Borrower and the Guarantors, and to
discuss the affairs, finances and accounts of the Borrower and the Guarantors
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate.
7.10. Environment. The Borrower will, and will cause the Significant
Guarantors to, (i) comply, in all material respects, with the provisions of all
federal, state, and local environmental, health, and safety laws, codes and
ordinances, and all rules and regulations issued thereunder; (ii) promptly
contain and remove any hazardous discharge from or affecting the Property of the
Borrower or such Significant Guarantor, to the extent required by and in
compliance with all applicable laws; (iii) promptly pay any fine or penalty
assessed in connection therewith or contest the same in good faith; and (iv)
permit the Agent to inspect such Property, to conduct tests thereon, and to
inspect all books, correspondence, and records pertaining thereto at reasonable
hours and places; and (v) at the request of the Required Lenders, and at the
Borrower's expense, provide a report of a qualified environmental engineer,
satisfactory in scope, form, and content to the Required Lenders, and such other
and further assurances reasonably satisfactory to the Required Lenders that any
new condition or occurrence hereafter identified in any revision of Schedule
"6.16" delivered by the Borrower pursuant to Section 7.12 has been corrected;
provided that a failure to comply with the foregoing provisions of this Section
7.10 shall not constitute a Default or an Unmatured Default unless such
noncompliance has resulted in or is reasonably likely to result in costs or
liabilities to the Borrower or a Significant Guarantor in excess of $2,500,000.
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7.11. New Subsidiary. In the event that Borrower shall hereafter create
a new Subsidiary or a Person shall hereafter become a Subsidiary of the
Borrower, the Borrower shall (i) cause such Subsidiary to execute and deliver to
the Agent (a) in the case of a Subsidiary that is not a Non-Borrowing
Subsidiary, a Guaranty and an amendment to the Contribution Agreement pursuant
to which such Guarantor shall become a party thereunder and (b) in the case of a
Non-Borrowing Subsidiary, a Subordination Agreement, and (ii) deliver or cause
to be delivered, by and with respect to such Subsidiary, certificates, opinions
and other documents substantially similar to those referred to in Sections
5.1(i), (ii), (iii), (vi) and (vii) and such other documents as any Lender or
Issuing Bank or their respective counsel may reasonably request; all of the
foregoing shall be in form and substance satisfactory to the Required Lenders.
7.12. Change in Schedules. Promptly following the occurrence of any
event or circumstance as a result of which any of Schedules 6.7, 6.8 or 6.16
ceases to be accurate in all material respects, the Borrower shall furnish to
the Agent the applicable revised Schedule and shall certify that such revised
Schedule is true, correct and complete in all material respects, and such
revised Schedule shall be substituted for the applicable Schedule hereunder.
7.13. Year 2000. The Borrower will take all actions reasonably
necessary to assure that the Year 2000 Issues will not have a Material Adverse
Effect and, upon the Agent's request, will provide the Agent a description of
its program to address the Year 2000 Issues, including updates and progress
reports. The Borrower will promptly advise the Agent of any reasonably
anticipated Material Adverse Effect as a result of Year 2000 Issues.
ARTICLE VIII
NEGATIVE COVENANTS
During the term of the Agreement, unless the Required Lenders
shall otherwise consent in writing:
8.1. Dividends. The Borrower will not, nor will it permit any
Significant Guarantor to, declare or pay any dividends on its Equity Securities
(other than dividends payable in (a) its own Equity Securities or (b) rights to
acquire its own Equity Securities or the Equity Securities of another Person),
except that (i) provided no Default or Unmatured Default has occurred that is
continuing, Borrower may pay in any fiscal quarter aggregate dividends not to
exceed fifty percent (50%) of Consolidated Net Income for the preceding fiscal
quarter and (ii) any Significant Guarantor may declare and pay dividends to the
Borrower or to a Wholly-Owned Subsidiary.
8.2. Indebtedness. The Borrower will not, nor will it permit any
Significant Guarantor to, create,
incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Guaranties.
(ii) Indebtedness described in Schedule "8.2" hereto and
Refinancing Indebtedness with respect thereto.
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(iii) Rate Hedging Obligations related to the Loans or otherwise
required pursuant to Section 9.5 hereof.
(iv) Indebtedness of the Borrower to a Subsidiary or of a
Subsidiary to the Borrower or to another Subsidiary, provided
the same is permitted under Section 7.2.
(v) Trade accounts payable and accruals arising or occurring in
the ordinary course of business.
(vi) Indebtedness with respect to Letters of Credit (including
Facility Letters of Credit) in an aggregate amount outstanding
at any time not to exceed $40,000,000.
(vii) Indebtedness secured by purchase-money Liens permitted under
Section 8.8(ii).
(viii) Subordinated Indebtedness.
(ix) Non-Recourse Indebtedness in an aggregate amount outstanding
at any time not to exceed $50,000,000.
(x) Performance bonds, completion bonds, and guarantees of
performance.
(xi) Indebtedness or other liabilities incurred in transactions
permitted pursuant to Section 8.5.
(xii) Indebtedness of a Person existing as of the time of the
Acquisition of such Person by the Borrower or any Guarantor,
provided that, after giving effect to such Acquisition, the
Borrower is in compliance with the terms of this Agreement
(including without limitation Section 7.11 and Article IX).
(xiii) Indebtedness not otherwise permitted by this Section 8.2 in an
aggregate amount outstanding at any time not to exceed
$50,000,000.
8.3. Merger. The Borrower will not, nor will it permit any Guarantor
to, merge or consolidate with or into any other Person, except (i) that a
Guarantor may merge with any other Guarantor or with the Borrower and (ii) for
transactions permitted under Section 8.4 or Section 8.6(vii).
8.4. Sale of Assets. The Borrower will not, nor will it permit any
Significant Guarantor to, lease, sell or otherwise dispose of its Property, to
any other Person except (i) for sales or leases in the ordinary course of
business, (ii) for leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and the Significant Guarantors
previously leased, sold or disposed of (other than in the ordinary course of
business) as permitted by this Section during the twelve-month period ending
with the month in which any such lease, sale or other disposition occurs, do not
constitute a Substantial Portion of the Property of the Borrower and the
Significant Guarantors and (iii) as permitted in Section 8.5.
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8.5. Sale and Leaseback. The Borrower will not, nor will it permit any
Significant Guarantor to, sell or transfer any of its Property in order to
concurrently or subsequently lease as lessee such or similar Property, except
for model homes that do not at any time exceed $25,000,000 in book value, in the
aggregate for the Borrower and the Significant Guarantors.
8.6. Investments and Acquisitions. The Borrower will not, nor will it
permit any Significant Guarantor to, make or suffer to exist any Investments
(including without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Obligations of, or fully guaranteed by, the United States of
America or any agency thereof, which obligations have
maturities of one year or less.
(ii) Commercial paper rated A-l or better by S&P or P-l or better
by Moody's.
(iii) Demand deposit accounts maintained in the ordinary course of
business.
(iv) Certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital
and surplus in excess of $100,000,000.
(v) Existing Investments in Subsidiaries and other Investments
described in Schedule "8.6" hereto.
(vi) Investments in joint ventures, partnerships, limited liability
companies or other business organizations in which any Person
other than the Borrower or a Significant Guarantor has an
interest (excluding those Wholly-Owned Subsidiaries of the
type identified in the last sentence of the definition of
"Wholly-Owned Subsidiaries"), provided that the aggregate
outstanding amount of all such Investments of the Borrower and
the Significant Guarantors does not at any time exceed fifteen
percent (15%) of Consolidated Tangible Net Worth.
(vii) The Acquisition of a business or entity engaged primarily in
the business of home building, provided that (A) any
Acquisition is approved by the board of directors (or a
committee thereof having authority to authorize such
transaction) or other governing body of the owner of the
business or entity to be acquired, (B) the Investment
(exclusive of the issuance of Equity Securities of the
Borrower or its Subsidiaries in connection therewith) in any
single Acquisition after May 31, 1998 does not exceed
$25,000,000 and in all such Acquisitions after May 31, 1998
does not exceed $75,000,000 in the aggregate, (C) immediately
upon the consummation of any such Acquisition the Borrower is
in compliance with the terms, covenants and conditions of this
Agreement (including without limitation Section 7.11 and
Article IX) and (D) the Borrower shall deliver to the Agent a
certificate, signed by an Authorized Officer, certifying that,
on the date of, and taking into account, the consummation of
such Acquisition, no Default or Unmatured Default has occurred
and is continuing.
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(viii) Investment of the Borrower in a Guarantor or of a Guarantor in
the Borrower or another Guarantor.
(ix) Investments in Non-Borrowing Subsidiaries to the extent
permitted under the provisions of Section 7.2 and other loans
or advances to or other Investments in Non-Borrowing
Subsidiaries that are neither made nor outstanding at any time
at which any Loans (excluding Facility Letters of Credit) are
outstanding hereunder.
(x) Stock, obligations or securities received in satisfaction of
debts owing to the Borrower or any Guarantor.
(xi) Pledges or deposits in cash by the Borrower or a Guarantor to
support surety bonds, performance bonds or guarantees of
completion in the ordinary course of business.
(xii) The creation of new (A) Subsidiaries engaged primarily in the
home building business (or the purpose of which is principally
to preserve the use of a name in which such business is
conducted) or (B) Non-Borrowing Subsidiaries.
(xiii) Investments pursuant to the Borrower's or a Significant
Guarantor's employment compensation plans or agreements.
(xiv) Investments, in addition to those enumerated in this Section
8.6, in an aggregate amount outstanding at any time not to
exceed $25,000,000.
(xv) The purchase, repurchase, repayment, prepayment, redemption or
other acquisition of (i) any of the Borrower's Equity
Securities involving cash expenditures from and after December
31, 1997, not to exceed, in the aggregate, the sum of
$30,000,000, plus the amount of cash proceeds received by the
Borrower or a Guarantor after December 31, 1997 (A) from the
sale of Equity Securities of the Borrower or any Guarantor and
(B) in connection with the exercise of any convertible
security (including, without limitation, the Borrower's Class
B Warrants) entitling the holder thereof to acquire any Equity
Securities of the Borrower or a Guarantor, or as otherwise
permitted under Sections 8.9 and 8.11 hereof; and (ii) rights
issued by the Borrower under the Rights Plan.
(xvi) Investments permitted under Section 8.9 hereof.
8.7. Contingent Obligations. The Borrower will not, nor will it permit
any Significant Guarantor to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the
obligations of a Subsidiary), except (i) the Guaranty, and (ii) to the extent
permitted by Section 8.2.
8.8. Liens. The Borrower will not, nor will it permit any Significant
Guarantor to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of the Significant Guarantors, except:
(i) Permitted Encumbrances.
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(ii) Purchase-money Liens on any Property hereafter acquired or the
assumption of any Lien on Property existing at the time of
such acquisition (and not created in contemplation of such
acquisition), or a Lien incurred in connection with any
conditional sale or other title retention or a Capitalized
Lease; provided that
(a) Any Property subject to any of the foregoing is
acquired by the Borrower or any Significant Guarantor
in the ordinary course of its respective business and
the Lien on any such Property attaches to such asset
concurrently or within 90 days after the acquisition
thereof;
(b) The obligation secured by any Lien so created,
assumed, or existing shall not exceed ninety percent
(90%) of the lesser of the cost or the fair market
value as of the time of acquisition of the Property
covered thereby by the Borrower or the Significant
Guarantor acquiring the same; and
(c) Each Lien shall attach only to the Property so
acquired.
(iii) Liens existing on the date hereof and described in Schedule
"8.2" hereto and Liens securing Refinancing Indebtedness with
respect thereto.
(iv) Liens incurred in the ordinary course of business not
otherwise permitted by this covenant, provided that the
aggregate amount of Indebtedness secured by such Liens
outstanding at any time shall not exceed $25,000,000.
(v) Judgments and similar Liens arising in connection with court
proceedings; provided the execution or enforcement thereof is
stayed and the claim is being contested in good faith.
(vi) Liens securing Non-Recourse Indebtedness.
(vii) Liens existing with respect to Indebtedness of a Person
acquired in an Acquisition permitted by this Agreement.
8.9. Redemption. The Borrower will not purchase or redeem any of its
Equity Securities heretofore or hereafter issued, except that the Borrower may
(x) purchase or redeem its Equity Securities (i) to the extent that the
consideration for such redemption or purchase is limited to Equity Securities of
the Borrower or a Subsidiary or (ii) if the consideration for such purchase or
redemption is other than Equity Securities of the Borrower or a Subsidiary and
such purchase or redemption is permitted under Section 8.6(xv), and (y) purchase
or redeem the rights issued under the Rights Plan.
8.10. Affiliates. The Borrower will not, nor will it permit any
Significant Guarantor to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate of the Borrower except (i) in the ordinary
course of business and pursuant to the reasonable requirements of the Borrower's
or such Guarantor's business and upon fair and reasonable terms no less
favorable to the Borrower or such Significant Guarantor than the Borrower or
such Significant Guarantor would obtain in a
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comparable arms-length transaction, (ii) Investments permitted under Section 7.2
or 8.6 and (iii) pursuant to employment and director compensation plans and
agreements.
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 repayment or prepayment of Subordinated Indebtedness
solely from the net proceeds of other Subordinated Indebtedness or from Equity
Securities of any Person or (ii) the purchase, repurchase, repayment,
prepayment, redemption or other acquisition of the Borrower's Equity Securities
to the extent permitted under Section 8.6(xv) or Section 8.9.
8.12. Amendments. The Borrower will not (i) amend or modify any Senior
Indenture or the Senior Debt Securities, except for amendments or modifications
that do not (a) impose upon the Borrower obligations not contained therein as of
the date of this Agreement, (b) accelerate any of the tax obligations of the
Borrower or (c) otherwise adversely affect the Borrower; or (ii) permit any
Guarantor to amend or modify the Contribution Agreement, except as provided in
Section 7.11.
8.13. Financial Undertakings. The Borrower will not, nor will it permit
any Significant Guarantor to, enter into or remain liable upon any Financial
Undertaking, except as permitted under this Agreement.
ARTICLE IX
FINANCIAL COVENANTS
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
9.1. Minimum Consolidated Tangible Net Worth. The Borrower will
maintain at all times a Consolidated Tangible Net Worth of not less than (i)
$375,000,000 plus (ii) fifty percent (50%) of the Consolidated Net Income earned
after March 31, 1998 (excluding any quarter in which there is a loss) plus (iii)
one hundred percent (100%) of the net cash proceeds of Equity Securities issued
by the Borrower after March 31, 1998, minus (iv) the amount (not to exceed, in
the aggregate, the net cash proceeds (if any) received by the Borrower in
connection with the exercise, after May 31, 1998, of any of the Borrower's Class
B Warrants) expended by the Borrower after the date of this Agreement to
purchase or redeem any of the Borrower's Equity Securities.
9.2. Permitted Indebtedness Ratio. (a) The Borrower will not at any
time permit (x) the excess of (i) Consolidated Funded Indebtedness over (ii) the
amount of Unrestricted Cash of the Borrower and its Subsidiaries to exceed (y)
the product of (i) the then applicable PIR and (ii) Consolidated Tangible Net
Worth.
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(b) If as of the last day of any fiscal quarter, the Borrower
shall fail to maintain a ratio, for the four-quarter period ending on such day,
of (i) EBITDA to (ii) Consolidated Interest Incurred, of at least 1.75 to 1.0
(the "Coverage Test"), then the PIR, effective as of the first day of the fiscal
quarter immediately following the four-quarter period with respect to which the
Borrower shall have so failed the Coverage Test, shall be decreased to the
extent herein provided. Upon the first failure to satisfy the Coverage Test, or
any other failure to satisfy the Coverage Test that occurs on a date on which
the PIR is 1.75, the PIR shall be decreased by 0.25 to 1.50. Upon any failure to
satisfy the Coverage Test that occurs on a date on which the PIR is less than
1.75, the PIR shall be decreased by 0.10.
(c) If at any time at which the PIR is less than 1.75, the
Borrower shall satisfy the Coverage Test (which for purposes of this Section
9.2(c) shall be deemed satisfied only if, on the same day on which the Borrower
maintains the ratio set forth in Section 9.2(b), the Borrower is also in
compliance with the covenant set forth in Section 9.2(a)), then the PIR,
effective as of the first day of the fiscal quarter immediately following the
four-quarter period with respect to which the Borrower shall have so satisfied
the Coverage Test, shall be increased to the extent herein provided. Upon
satisfaction of the Coverage Test on a date on which the PIR is 1.50, the PIR
shall be increased to 1.75. Upon satisfaction of the Coverage Test on a date on
which the PIR is less than 1.50, the PIR shall be increased by 0.10. In no event
shall the PIR exceed 1.75.
(d) Any increase or decrease of the PIR provided for in this
Section 9.2 shall be effective as of the first day of a fiscal quarter as
provided in Section 9.2(b) or (c) (as applicable), and the PIR (as adjusted)
shall remain in effect for the entire fiscal quarter and thereafter unless and
until adjusted as of the first day of any subsequent fiscal quarter as provided
in this Section 9.2(b) or (c) (as applicable).
(e) A failure to satisfy the Coverage Test shall not
constitute a Default or an Unmatured Default but a failure at any time to comply
with the covenant set forth in Section 9.2(a) shall constitute a Default under
Section 10.3.
9.3. Land Owned. The Borrower will not at any time permit (a) the sum
of (i) the book value of all raw land owned by the Borrower or any Guarantor for
development or sale, plus (ii) the book value of all land under development
owned by the Borrower or any Guarantor, plus (iii) the book value of all lots
that have been Finished Lots for more than nine months, to exceed (b) the sum of
(i) Consolidated Tangible Net Worth plus (ii) fifty percent (50%) of the
outstanding principal amount of the Subordinated Indebtedness of the Borrower
and the Guarantors (on a consolidated basis).
9.4. Housing Inventory. The Borrower will not at any time permit the
number of Inventory Housing Units to exceed twenty-five percent (25%) of the
number of Housing Unit Closings during the preceding twelve (12) months.
9.5. Rate Protection. The Borrower will not at any time permit less
than fifty percent (50%) of the outstanding principal amount of the obligations
of the Borrower and the Guarantors described in clauses (i), (iv) and (viii) of
the definition of "Indebtedness," on a consolidated basis, to be Fixed Rate
Debt.
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ARTICLE X
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
10.1. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any Significant Guarantor to the Lenders, the Issuing
Bank or the Agent under or in connection with this Agreement, any Loan Document,
or any certificate or information delivered in connection with this Agreement or
any other Loan Document shall not be true and correct in any material respect on
the date as of which made.
10.2. Nonpayment of principal of any Note when due, or nonpayment of
interest upon any Note or of any commitment fee or other obligations under any
of the Loan Documents within five days after the same becomes due.
10.3. The breach by the Borrower (other than a breach which
constitutes a Default under Section 10.1 or 10.2) of any of the terms or
provisions of this Agreement which is not remedied within 30 days after the
occurrence of such breach.
10.4. Failure of the Borrower or any Significant Guarantor to pay
when due (after any applicable grace or notice period) any Indebtedness (other
than Non-Recourse Indebtedness or the Obligations) equal to or exceeding
$5,000,000 (in the aggregate); or the default by the Borrower or any Significant
Guarantor in the performance of any term, provision or condition contained in
any agreement under which any Indebtedness (other than Non-Recourse Indebtedness
or the Obligations) equal to or exceeding $5,000,000 (in the aggregate) was
created or is governed, or any other event shall occur or condition exist, the
effect of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity; or any Indebtedness (other than Non-Recourse Indebtedness or the
Obligations) of the Borrower or any Significant Guarantor equal to or exceeding
$5,000,000 (in the aggregate) shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or the Borrower or any Significant Guarantor shall
not pay, or shall admit in writing its inability to pay, its debts generally as
they become due.
10.5. The Borrower or any Significant Guarantor shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file,
within the applicable time period for the filing thereof, an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the
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foregoing actions set forth in this Section 10.5 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 10.6.
10.6. A receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any Significant Guarantor or any
Substantial Portion of its Property without the application, approval or consent
of the Borrower or such Significant Guarantor, or a proceeding described in
Section 10.5(iv) shall be instituted against the Borrower or any Significant
Guarantor and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 60 consecutive days.
10.7. The Borrower or any Significant Guarantor shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $10,000,000 which has not been stayed on appeal or is not
otherwise being appropriately contested in good faith.
10.8. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $5,000,000 or any Reportable Event shall occur in
connection with any Plan, which Reportable Event has had or would reasonably be
expected to have a Material Adverse Effect.
10.9. The Borrower or any member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $5,000,000 or requires
payments exceeding $2,000,000 per annum; provided, however, that such event
shall not constitute a Default as long as the Borrower or the Controlled Group
member, as applicable, is contesting in good faith the imposition of withdrawal
liability.
10.10. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization, if as a result of such reorganization
the aggregate annual contributions of the Borrower and the other members of the
Controlled Group (taken as a whole) to all Multiemployer Plans which are then in
reorganization have been or will be increased over the amounts contributed to
such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization occurs by an amount exceeding $5,000,000.
10.11. Any Change in Control shall occur.
10.12. Any Guaranty shall fail to remain in full force or effect with
respect to any one or more of the Significant Guarantors (except by reason of a
merger of a Significant Guarantor with the Borrower or another Guarantor or the
dissolution of a Guarantor permitted hereunder or as a result of a sale
permitted under Section 8.4) or any action shall be taken by any one or more of
the Significant Guarantors to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Significant Guarantor shall fail to
comply with any of the terms or provisions of any Guaranty, or any Significant
Guarantor denies that it has any further liability under any Guaranty or gives
notice to such effect (except by reason of a merger of a Significant Guarantor
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with the Borrower or another Guarantor or the dissolution of a Guarantor
permitted hereunder or as a result of a sale permitted under Section 8.4).
ARTICLE XI
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
11.1. Acceleration. If any Default described in Section 10.5 or 10.6
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans (including, in the case of the Swing Line Bank, Swing Line Loans) and of
the Issuing Bank to issue Facility Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Agent, the Issuing
Bank or any Lender. If any other Default occurs, the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans (including, in
the case of the Swing Line Bank, Swing Line Loans) and of the Issuing Bank to
issue Facility Letters of Credit hereunder, or declare the Obligations to be due
and payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives. If, within five days after
acceleration of the maturity of the Obligations or termination of the
obligations of the Lenders to make Loans (including, in the case of the Swing
Line Bank, Swing Line Loans) hereunder as a result of any Default (other than
any Default as described in Section 10.5 or 10.6 with respect to the Borrower)
and before any judgment or decree for the payment of the Obligations due shall
have been obtained or entered, the Required Lenders (in their sole discretion)
shall so direct, the Agent shall, by notice to the Borrower, rescind and annul
such acceleration and/or termination.
11.2. Amendments. Subject to the provisions of this Article XI, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender and Issuing Bank affected thereby:
(i) Extend the maturity of any Loan or Note or forgive all or any
portion of the principal amount thereof, or reduce the rate
of, or extend the time of payment of, interest or fees thereon
(except as provided in the last sentence of Section 11.1);
(ii) Reduce the percentage specified in the definition of Required
Lenders;
(iii) Increase the amount of the Commitment of any Lender hereunder
(other than as contemplated by Section 2.5(b) or Section
2.5(c) hereof), or permit the Borrower to assign its rights
under this Agreement; or
(iv) Amend this Section 11.2.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
or reduce the amount
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of the fees referred to in Section 13.12 or the fee required under Section
15.3.2 without obtaining the consent of any other party to this Agreement.
11.3. Preservation of Rights. No delay or omission of any Lender or
Issuing Bank or the Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan (including a Swing Line Loan) or
the issuance, amendment or extension of a Facility Letter of Credit
notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan or Facility Letter of Credit shall
not constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders (and, if applicable, the Agent) required
pursuant to Section 11.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the
Issuing Bank and the Lenders until the Obligations have been paid in full.
ARTICLE XII
GENERAL PROVISIONS
12.1. Survival of Representations. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of the Notes
and the making of the Loans and the issuance, amendment or extension of any
Facility Letter of Credit herein contemplated.
12.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender or Issuing Bank shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
12.3. Taxes. Any recording, intangible, filing or stamp fees or taxes
or other similar assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by the Borrower,
together with interest and penalties, if any.
12.4. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
12.5. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower and the Agent, the
Lenders relating to the subject matter thereof.
12.6. Nature of Obligations; Benefits of this Agreement. (a) The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Agent is authorized to act as such). The failure of
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any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder.
(b) This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
12.7. Expenses; Indemnification. The Borrower shall reimburse the
Agent for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by the
Agent in connection with the preparation, negotiation, execution, delivery,
review, amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent, the Lenders and each Issuing Bank
for any reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Agent, the
Lenders and such Issuing Bank, which attorneys may be employees of the Agent,
the Lenders or such Issuing Bank) paid or incurred by the Agent, any Lender or
such Issuing Bank in connection with the collection and enforcement of the Loan
Documents. The Borrower further agrees to indemnify the Agent and each Lender or
Issuing Bank, its directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Agent or any Lender or Issuing Bank is a party thereto) which any of them
may pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder
(except to the extent arising due to the gross negligence or willful misconduct
of the indemnified Person). The obligations of the Borrower under this Section
shall survive the termination of this Agreement.
12.8. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
12.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP applied on a
basis consistent with the audited financial statements of the Borrower as of
December 31, 1998 ("Agreement Accounting Principles"). If any change in GAAP
from the principles used in preparing such statements would have a material
effect upon the results of any calculation required by or compliance with any
provision of this Agreement, then such calculation shall be made or calculated
and compliance with such provision shall be determined using accounting
principles used in preparing the audited financial statements of the Borrower as
of December 31, 1998.
12.10. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
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12.11. Nonliability of Lenders and Issuing Bank. The relationship
between the Borrower and the Lenders and the Agent shall be solely that of
borrower and lender. Neither the Agent nor any Lender or Issuing Bank shall have
any fiduciary responsibilities to the Borrower. Neither the Agent nor any Lender
or Issuing Bank undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
12.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
12.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT OR ANY LENDER OR ISSUING BANK TO BRING PROCEEDINGS AGAINST THE BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ISSUING BANK OR ANY AFFILIATE OF THE AGENT OR
ANY LENDER OR ISSUING BANK INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE
BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
12.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, AND EACH LENDER
AND ISSUING BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
12.15. Confidentiality. Each Lender and the Agent agree to use
commercially reasonable efforts to keep confidential any financial reports and
other information from time to time supplied to them by the Borrower hereunder
to the extent that such information is not and does not become publicly
available through or with the consent or acquiescence of the Borrower, except
for disclosure (i) to the Agent and the other Lenders or to a Transferee, (ii)
to legal counsel, accountants, and other professional advisors to a Lender, the
Agent or a Transferee, (iii) to regulatory officials, (iv) to any Person as
required by law, regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which that Lender is a party, and (vi) permitted by
Section 15.4. Any Lender or Agent disclosing such information shall use
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commercially reasonable efforts to advise the Person to whom such information is
disclosed of the foregoing confidentiality agreement and to direct such Person
to comply therewith.
ARTICLE XIII
THE AGENT
13.1. Appointment. Bank One, NA is hereby appointed Agent hereunder and
under each other Loan Document, and each of the Lenders irrevocably authorizes
the Agent to act as the agent of such Lender. The Agent agrees to act as such
upon the express conditions contained in this Article XIII. The Agent shall not
have a fiduciary relationship in respect of the Borrower, any Lender or the
Issuing Bank by reason of this Agreement.
13.2. Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
13.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower or any Lender for
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except for its or their own
gross negligence or willful misconduct.
13.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing or
any request for the issuance, amendment or extension of any Facility Letter of
Credit hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document or Reimbursement Agreement,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV or V, except receipt of items required to be delivered
to the Agent; or (iv) the validity, effectiveness or genuineness of any Loan
Document or Reimbursement Agreement or any other instrument or writing furnished
in connection with any of the foregoing. The Agent shall have no duty to
disclose to the Lenders information that is not required to be furnished by the
Borrower to the Agent at such time, but is voluntarily furnished by the Borrower
to the Agent (either in its capacity as Agent or in its individual capacity).
13.5. Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders (except as otherwise provided in Section 11.2), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of Notes. The Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan
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Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
13.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
13.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
13.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Agent. The obligations of the Lenders under this
Section 13.8 shall survive payment of the Obligations and termination of this
Agreement.
13.9. Rights as a Lender or Issuing Bank. In the event the Agent is a
Lender, the Agent shall have the same rights and powers hereunder and under any
other Loan Document as any Lender and may exercise the same as though it were
not the Agent, and the term "Lender" or "Lenders" shall, at any time when the
Agent is a Lender, unless the context otherwise indicates, include the Agent in
its individual capacity. In the event the Agent is an Issuing Bank, the Agent
shall have the rights and powers of the Issuing Bank hereunder and may exercise
the same as though it were not the Agent, and the term "Issuing Bank" shall, at
any time when the Agent is the Issuing Bank, unless the context otherwise
indicates, include and mean the Agent in its capacity as the Issuing Bank. In
the event the Agent is a Swing Line Bank, the Agent shall have the rights and
powers of the Swing Line Bank hereunder and may exercise the same as though it
were not the Agent, and the term "Swing Line Bank" shall, at any time when the
Agent is the Swing Line Bank, unless the context otherwise indicates, include
and mean the Agent in its capacity as the Swing Line Bank. The Agent may accept
deposits from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those
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contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
13.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
13.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, 45 days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. If the Agent has resigned or been removed and no successor
Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrower shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at least $50,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article XIII shall continue in effect for
the benefit of such Agent in respect of any actions taken or omitted to be taken
by it while it was acting as the Agent hereunder and under the other Loan
Documents.
13.12. Agent's and Arranger's Fees. The Borrower agrees to pay (to the
extent not heretofore paid) to the Agent and/or Arranger (as applicable), each
for its own account, the fees agreed to by the Borrower, First Chicago Capital
Markets, Inc. (to whose rights Arranger has succeeded) and the Agent in that
certain letter agreement dated August 7, 1998 and by Borrower, the Agent and the
Arranger in that certain letter agreement dated November 24, 1999.
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ARTICLE XIV
SETOFF; RATABLE PAYMENTS
14.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders, Swing Line Bank or Issuing Bank under applicable law, if the
Borrower becomes insolvent, however evidenced, or any Default occurs, any and
all deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender, Swing Line Bank or Issuing Bank to or for the
credit or account of the Borrower may be offset and applied toward the payment
of the Obligations owing to such Lender, Swing Line Bank or Issuing Bank,
whether or not the Obligations, or any part hereof, shall then be due.
14.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 3.1, 3.2 or 3.4 and other than payments received by the Swing Line Bank
with respect to Swing Line Loans) in a greater proportion than that received by
any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans (other than the Swing Line Loans) held by the other Lenders
so that after such purchase each Lender will hold its ratable proportion of
Loans (other than Swing Line Loans). If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations (other than the Swing Line
Bank with respect to the Swing Line Loans) or such amounts which may be subject
to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans (other than Swing Line Loans). In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
ARTICLE XV
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
15.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Lenders and the Issuing Bank and their respective successors and assigns, except
that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents, and (ii) any assignment by any Lender must
be made in compliance with Section 15.3. Notwithstanding clause (ii) of this
Section, any Lender may at any time, without the consent of the Borrower or the
Agent, assign all or any portion of its rights under this Agreement and its
Notes to a Federal Reserve Bank; provided, however, that no such assignment
shall release the transferor Lender from its obligations hereunder. The Agent
may treat the payee of any Note as the owner thereof for all purposes hereof
unless and until such payee complies with Section 15.3 in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Agent. Any assignee or transferee of a Note
agrees by acceptance thereof to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the holder of any
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Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
15.2. Participations.
15.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other Persons that are not, and that are not
Affiliates of a Person, in the home building business ("Participants")
participating interests in any Loan owing to such Lender (which may include, in
the case of the Swing Line Bank, any Swing Line Loan), any Note held by such
Lender, any Commitment of such Lender (or in the case of the Swing Line Bank,
any Swing Line Commitment) or any other interest of such Lender under the Loan
Documents in an amount of not less than $5,000,000. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, such Lender shall remain the holder of any such Note for all
purposes under the Loan Documents, all amounts payable by the Borrower under
this Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower, the Agent and the Issuing Bank shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
15.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment (or any Swing Line
Loan or Swing Line Commitment, if applicable) in which such Participant has an
interest which forgives principal, interest or fees (other than Agent's fees) or
reduces the interest rate or fees (other than Agent's fees) payable with respect
to any such Loan or Commitment (or any Swing Line Loan or Swing Line Commitment,
if applicable), or postpones any date fixed for any regularly-scheduled payment
of principal of, or interest or fees (other than Agent's fees) on, any such Loan
or Commitment (or any Swing Line Loan or Swing Line Commitment, if applicable).
15.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 14.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 15.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 14.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 14.2 as if each Participant were a Lender.
15.3. Assignments.
15.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time assign
to one or more banks or other
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Persons that are not, and that are not Affiliates of a Person, in the home
building business ("Purchasers") all or any part of its rights and obligations
under the Loan Documents (which may include, in the case of a Purchaser of an
interest from the Swing Line Bank, the Swing Line Commitment and Swing Line
Loans) in the amount of not less than $5,000,000, provided that, immediately
following such assignment, the assigning Lender either (i) shall retain a
Commitment of not less than $10,000,000 or (ii) shall have assigned all of its
Commitment and have no remaining interest in the Obligations and provided,
further, that Bank One may not assign the Swing Line Commitment or Swing Line
Loan except to a Purchaser that is, or at the time of such assignment becomes,
the Agent in accordance with the provisions of this Agreement. Such assignment
shall be substantially in the form of Exhibit "L" hereto or in such other form
as may be agreed to by the parties thereto. In the case of an assignment of a
Commitment or any portion thereof (excluding, however, the Swing Line Commitment
or any portion thereof) other than to a Lender or an Affiliate thereof and in
the case of any assignment of the Swing Line Commitment or any portion thereof,
the consent of the Borrower and the Agent shall be required prior to such
assignment becoming effective; provided, however, that if a Default has occurred
and is continuing, the consent of the Borrower shall not be required. Such
consents shall not be unreasonably withheld.
15.3.2. Effect; Effective Date. Upon (i) delivery to the Agent
of a notice of assignment, substantially in the form attached as Exhibit "I" to
Exhibit "L" hereto (a "Notice of Assignment"), together with any consents
required by Section 15.3.1, and (ii) payment by the Lender of a $4,000 fee to
the Agent for processing such assignment, such assignment shall become effective
on the effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect that
none of the consideration used to make the purchase of the Commitment and Loans
(and, if applicable, the Swing Line Commitment and Swing Line Loans) under the
applicable assignment agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan Documents
will not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by the Lenders and shall have all
the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or action
by the Borrower, the Lenders or the Agent shall be required to release the
transferor Lender with respect to the percentage of the Aggregate Commitment and
Loans (and any Swing Line Commitment or Swing Line Loan) assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 15.3.2, the transferor Lender, the Agent and the Borrower shall
make appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Commitment, as adjusted pursuant to such assignment.
15.4. Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
12.15 of this Agreement.
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<PAGE> 75
15.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.19.
ARTICLE XVI
NOTICES
16.1. Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
16.2. Change of Address. The Borrower, the Agent, any Lender and the
Issuing Bank may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XVII
COUNTERPARTS
This Agreement 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 Agreement by signing any such counterpart.
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<PAGE> 76
IN WITNESS WHEREOF, the Borrower, the Lenders, and the Agent have
executed this Agreement as of the date first above written.
BORROWER:
U.S. HOME CORPORATION
By:
--------------------------------------------
Name: Thomas A. Napoli, Vice President -
Corporate Finance and Treasurer
10707 Clay Road
Houston, TX 77041
Attention: Thomas A. Napoli
LENDERS:
Commitments
-----------
$60,000,000.00 BANK ONE, NA, Individually and as Agent
By:
--------------------------------------------
Name:
Title:
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Chris Flynn
69
<PAGE> 77
$60,000,000.00 GUARANTY FEDERAL BANK, F.S.B., Individually and as
Syndication Agent
By:
--------------------------------------------
Name: Randall S. Reid
Title: Vice President
8333 Douglas Avenue
Dallas, TX 75225
Attention: Randall S. Reid
$50,000,000.00 CREDIT LYONNAIS NEW YORK BRANCH, Individually and
as Documentation Agent
By:
--------------------------------------------
Name:
Title:
1301 Avenue of the Americas
New York, New York 10019
Attention: Loan Servicing Department
with a copy to:
Lincoln Plaza
2200 Ross Avenue - Suite 4400W
Dallas, TX 75201
Attention: R. Blake Wright
$50,000,000.00 COMERICA BANK, a Michigan corporation
By:
--------------------------------------------
Name: David J. Campbell
Title: Vice President
Overnight Mail
500 Woodward Avenue, M/C 3256
Detroit, MI 48226
Attention: David J. Campbell
U.S. Mail
P.O. Box 75000
Detroit, MI 48275-3256
Attention: David J. Campbell
70
<PAGE> 78
$25,000,000.00 AMSOUTH BANK
By:
--------------------------------------------
Name: Ronny Hudspeth
Title: Senior Vice President
Sonat Tower
1900 5th Avenue North
9th Floor
Birmingham, AL 35203
Attention: Ronny Hudspeth
$35,000,000.00 BANK UNITED
By:
--------------------------------------------
Name: Brandi L. Hermis
Title: Assistant Vice President
3200 Southwest Freeway
Suite 2000
Houston, TX 77027
Attention: Carolyn Alexander
$25,000,000.00 PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------------------
Name: Douglas G. Paul
Title: Vice President
Two Tower Center
18th Floor
East Brunswick, NJ 08816
Attention: Douglas G. Paul
71
<PAGE> 79
$17,500,000.00 HARRIS TRUST AND SAVINGS BANK
By:
--------------------------------------------
Name: Gregory M. Bins
Title: Managing Director
111 West Monroe Street
Chicago, IL 60603
Attn: Gregory M. Bins
$20,000,000.00 SUNTRUST BANK
By:
--------------------------------------------
Name: Donald L. Gaudette, Jr.
Title: Director
303 Peachtree Street, N.E.
3rd Floor
Atlanta, GA 30308
Attn: Donald L. Gaudette, Jr.
$17,500,000.00 WACHOVIA BANK, N.A.
By:
--------------------------------------------
Name: Bruce W. Perrine, Jr.
Title: Vice President
1900 Summit Tower Blvd.
Suite 500
Orlando, FL 32810
Attn: Bruce W. Perrine, Jr.
72
<PAGE> 80
EXHIBIT "A"
GUARANTY
This GUARANTY ("Guaranty") is made as of the ___ day of
_____________, _____, by _________________________, a __________ corporation
(the "Guarantor"), in favor of the "Lenders" under that certain Fourth Amended
and Restated Credit Agreement, dated as of February 14, 2000, by and among U.S.
Home Corporation (the "Borrower"), the financial institutions from time to time
parties thereto (collectively, and including the Issuing Bank (as defined in the
Fourth Amended and Restated Credit Agreement) the "Lenders") and Bank One, NA,
in its capacity as Agent. Such Fourth Amended and Restated Credit Agreement, as
it may be amended, modified or supplemented from time to time, is hereinafter
referred to as the "Credit Agreement". Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in the
Credit Agreement.
1. Guaranty. (i) For value received and in consideration of
any loan, advance or financial accommodation of any kind whatsoever heretofore,
now or hereafter made, given or granted to the Borrower by the Lenders, the
Guarantor unconditionally guarantees for the benefit of each of the Lenders the
full and prompt payment when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all of the
Obligations (including, without limitation, interest accruing following the
filing of a bankruptcy petition by or against the Borrower, at the applicable
rate specified in the Credit Agreement, whether or not such interest is allowed
as a claim in bankruptcy).
(ii) At any time after the occurrence of a Default, the
Guarantor shall pay to the Agent, for the benefit of the Lenders, on demand and
in immediately available funds, the full amount of the Obligations. The
Guarantor further agrees to pay to the Agent and reimburse the Agent for, on
demand and in immediately available funds, (a) all reasonable fees, costs and
expenses (including, without limitation, all court costs and reasonable
attorneys' and paralegals' fees, costs and expenses) paid or incurred by the
Agent or any of the Lenders in: (1) endeavoring to collect all or any part of
the Obligations from, or in prosecuting any action against, the Guarantor
relating to this Guaranty; (2) taking any action with respect to any security or
collateral securing the Guarantor's obligations hereunder; and (3) preserving,
protecting or defending the enforceability of, or enforcing, this Guaranty or
their respective rights hereunder (all such reasonable costs and expenses are
hereinafter referred to as the "Expenses"). The Guarantor hereby agrees that
this Guaranty is an absolute guaranty of payment and is not a guaranty of
collection.
2. Obligations Unconditional. Subject to Section 10, the
Guarantor hereby agrees that its obligations under this Guaranty shall be
unconditional, irrespective of: (i) the validity, enforceability, avoidance,
novation or subordination of any of the Obligations or any of the Loan
Documents; (ii) the absence of any attempt by, or on behalf of, any Lender or
the Agent to collect, or to take any other action to enforce, all or any part of
the Obligations whether from or against the Borrower, any other guarantor of the
Obligations or any other Person; (iii) the election of any remedy by, or on
behalf of, any Lender or the Agent with respect to all or any part of the
Obligations; (iv) the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, any Lender or the Agent with respect to any
provision of any of
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<PAGE> 81
the Loan Documents; (v) the election by, or on behalf of, any one or more of the
Lenders, in any proceeding instituted under Chapter 11 of Title 11 of the United
States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the application
of Section 1111(b)(2) of the Bankruptcy Code; (vi) any borrowing or grant of a
security interest by the Borrower, as debtor-in-possession, under Section 364 of
the Bankruptcy Code; (vii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of any of the Lenders or the Agent for
repayment of all or any part of the Obligations or any Expenses; or (viii) any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of the Borrower or the Guarantor.
3. Enforcement; Application of Payments. Upon the occurrence
of a Default, the Agent may proceed directly and at once, without notice,
against the Guarantor to obtain performance of and to collect and recover the
full amount, or any portion, of the Obligations, without first proceeding
against the Borrower or any other Person, or against any security or collateral
for the Obligations. Subject only to the terms and provisions of the Credit
Agreement, the Agent shall have the exclusive right to determine the application
of payments and credits, if any, from the Guarantor, the Borrower or from any
other Person on account of the Obligations or any other liability of the
Guarantor to any Lender.
4. Waivers. (a) The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
receivership or bankruptcy of the Borrower, protest or notice with respect to
the Obligations, all setoffs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of this Guaranty, the benefits of all
statutes of limitation, and all other demands whatsoever (and shall not require
that the same be made on the Borrower as a condition precedent to the
Guarantor's obligations hereunder), and covenants that this Guaranty will not be
discharged, except by complete payment (in cash) and performance of the
Obligations and any other obligations contained herein. The Guarantor further
waives all notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to the Borrower or
otherwise, and also waives all notices that the principal amount, or any portion
thereof, and/or any interest on any instrument or document evidencing all or any
part of the Obligations is due, notices of any and all proceedings to collect
from the maker, any endorser or any other guarantor of all or any part of the
Obligations, or from any other Person, and, to the extent permitted by law,
notices of exchange, sale, surrender or other handling of any security or
collateral given to the Agent to secure payment of all or any part of the
Obligations.
(b) The Guarantor understands that it shall be liable for the
full amount of its liability under this Guaranty, notwithstanding the occurrence
of any event impairing the right of the Guarantor, the Agent or any of the
Lenders to proceed against the Borrower, any other guarantor or the Borrower's
or such guarantor's property. The Guarantor agrees that all of its obligations
under this Guaranty (including its obligation to pay in full all indebtedness
evidenced by or arising under the Credit Agreement) shall remain in full force
and effect without defense, offset or counterclaim of any kind, notwithstanding
that the Guarantor's rights against the Borrower may be impaired, destroyed or
otherwise affected by reason of any action or inaction on the part of the Agent
or any Lender.
(c) The Lenders, either themselves or acting through the
Agent, are hereby authorized, without notice or demand and without affecting the
liability of the Guarantor
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<PAGE> 82
hereunder, from time to time, (i) to renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, all or any part of
the Obligations, or to otherwise modify, amend or change the terms of any of the
Loan Documents; (ii) to accept partial payments on all or any part of the
Obligations; (iii) to take and hold security or collateral for the payment of
all or any part of the Obligations, this Guaranty, or any other guaranties of
all or any part of the Obligations or other liabilities of the Borrower, (iv) to
exchange, enforce, waive and release any such security or collateral; (v) to
apply such security or collateral and direct the order or manner of sale thereof
as in their discretion they may determine; and (vi) to settle, release,
exchange, enforce, waive, compromise or collect or otherwise liquidate all or
any part of the Obligations, this Guaranty, any other guaranty of all or any
part of the Obligations, and any security or collateral for the Obligations or
for any such guaranty. Any of the foregoing may be done in any manner, without
affecting or impairing the obligations of the Guarantor hereunder.
5. Setoff. At any time after all or any part of the
Obligations have become due and payable (by acceleration or otherwise) following
the occurrence of a Default, each Lender and the Agent may, without notice to
the Guarantor and regardless of the acceptance of any security or collateral for
the payment hereof, appropriate and apply toward the payment of all or any part
of the Obligations (i) any indebtedness due or to become due from such Lender or
the Agent to the Guarantor, and (ii) any moneys, credits or other property
belonging to the Guarantor, at any time held by or coming into the possession of
such Lender or the Agent or any of their respective affiliates.
6. Financial Information. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and any and all endorsers and/or other guarantors of all or any part of
the Obligations, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations, or any part thereof, that diligent inquiry would
reveal, and the Guarantor hereby agrees that none of the Lenders nor the Agent
shall have any duty to advise the Guarantor of information known to any of them
regarding such condition or any such circumstances. In the event any Lender, in
its sole discretion, undertakes at any time or from time to time to provide any
such information to the Guarantor, such Lender shall be under no obligation (i)
to undertake any investigation not a part of its regular business routine, (ii)
to disclose any information which such Lender, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (iii) to make any other or future disclosures of such
information or any other information to the Guarantor.
7. No Marshalling; Reinstatement. The Guarantor consents and
agrees that none of the Lenders nor the Agent nor any Person acting for or on
behalf of the Lenders or the Agent shall be under any obligation to marshall any
assets in favor of the Guarantor or against or in payment of any or all of the
Obligations. The Guarantor further agrees that, to the extent that the Borrower,
the Guarantor or any other guarantor of all or any part of the Obligations makes
a payment or payments to any Lender or the Agent, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to the Borrower, the
Guarantor, such other guarantor or any other Person, or their respective
estates, trustees, receivers or any other party, including, without limitation,
the Guarantor, under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or repayment, the part of
the Obligations which has been paid, reduced or satisfied by such amount shall
be reinstated and continued in full force and effect as of the time immediately
preceding such initial payment, reduction or satisfaction.
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<PAGE> 83
8. Subrogation. Until the Obligations have been paid in full,
the Guarantor (i) shall have no right of subrogation with respect to such
Obligations and (ii) waives any right to enforce any remedy which the Lenders or
the Agent (or any of them) now have or may hereafter have against the Borrower,
any endorser or any guarantor of all or any part of the Obligations or any other
Person, and the Guarantor waives any benefit of, and any right to participate
in, any security or collateral given to the Lenders and the Agent (or any of
them) to secure the payment or performance of all or any part of the Obligations
or any other liability of the Borrower to the Lenders.
9. Enforcement; Amendments; Waivers. No delay on the part of
any of the Lenders or the Agent in the exercise of any right or remedy arising
under this Guaranty, the Credit Agreement, any of the other Loan Documents or
otherwise with respect to all or any part of the Obligations or any other
guaranty of or security for all or any part of the Obligations shall operate as
a waiver thereof, and no single or partial exercise by any such Person of any
such right or remedy shall preclude any further exercise thereof. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon the Lenders or the Agent, except as expressly set forth in a
writing duly signed and delivered by the party making such modification or
waiver. Failure by any of the Lenders or the Agent at any time or times
hereafter to require strict performance by the Borrower, the Guarantor, any
other guarantor of all or any part of the Obligations or any other Person of any
of the provisions, warranties, terms and conditions contained in any of the Loan
Documents now or at any time or times hereafter executed by such Persons and
delivered to the Agent or any Lender shall not waive, affect or diminish any
right of the Agent or such Lender at any time or times hereafter to demand
strict performance thereof and such right shall not be deemed to have been
waived by any act or knowledge of the Agent or any Lender, or their respective
agents, officers or employees, unless such waiver is contained in an instrument
in writing, directed and delivered to the Borrower or the Guarantor, as
applicable, specifying such waiver, and is signed by the party or parties
necessary to give such waiver under the Credit Agreement. No waiver of any
Default by the Agent or any Lender shall operate as a waiver of any other
Default or the same Default on a future occasion, and no action by the Agent or
any Lender permitted hereunder shall in any way affect or impair the Agent's or
any Lender's rights and remedies or the obligations of the Guarantor under this
Guaranty. Any determination by a court of competent jurisdiction of the amount
of any principal and/or interest owing by the Borrower to any of the Lenders
shall be conclusive and binding on the Guarantor irrespective of whether the
Guarantor was a party to the suit or action in which such determination was
made.
10. Effectiveness; Termination. This Guaranty shall become
effective upon its execution by the Guarantor and shall continue in full force
and effect and may not be terminated or otherwise revoked until the Obligations
shall have been fully paid (in cash) and discharged and the Credit Agreement and
all financing arrangements between the Borrower and the Lenders shall have been
terminated. If, notwithstanding the foregoing, the Guarantor shall have any
right under applicable law to terminate or revoke this Guaranty, the Guarantor
agrees that such termination or revocation shall not be effective until a
written notice of such revocation or termination, specifically referring hereto,
signed by the Guarantor, is actually received by the Agent. Such notice shall
not affect the right and power of any of the Lenders or the Agent to enforce
rights arising prior to receipt thereof by the Agent. If any Lender grants loans
or takes other action after the Guarantor terminates or revokes this Guaranty
but before the Agent receives such written notice, the rights of such Lender
with respect thereto shall be the same as if such termination or revocation had
not occurred.
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<PAGE> 84
11. Successors and Assigns. This Guaranty shall be binding
upon the Guarantor and upon its successors and assigns and shall inure to the
benefit of the Lender and the Agent and their respective successors and assigns;
all references herein to the Borrower and to the Guarantor shall be deemed to
include their respective successors and assigns. The successors and assigns of
the Guarantor and the Borrower shall include, without limitation, their
respective receivers, trustees or debtors-in-possession. All references to the
singular shall be deemed to include the plural where the context so requires.
12. Officer Authority. The Guarantor authorizes its Chairman,
President, and each of its Vice Presidents, respectively, from time to time,
severally and not jointly, on behalf and in the name of the Guarantor from time
to time in the discretion of such officer, to take or omit to take any and all
action and to execute and deliver any and all documents and instruments which
such officer may determine to be necessary or desirable in relation to, and
perform any obligations arising in connection with, this Guaranty and any of the
transactions contemplated hereby, and, without limiting the generality of the
foregoing, hereby gives to each such officer severally the power and right on
behalf of the Guarantor, without notice to or assent by the Guarantor, to do the
following: (i) to execute and deliver any amendment, waiver, consent,
supplement, other modification or reaffirmation of this Guaranty or any document
relating hereto, and to perform any obligation arising in connection herewith or
therewith; (ii) to sell, transfer, assign, encumber or otherwise deal in or with
any security for this Guaranty or any part thereof; (iii) to grant liens,
security interests or other encumbrances on or in respect of any property or
assets of the Guarantor, whether now owned or hereafter acquired, in favor of
the Lenders and the Agent; (iv) to send notices, directions, orders and other
communications to any Person relating to this Guaranty, or any security for all
or any part of the Obligations; (v) to take or omit to take any other action
contemplated by or referred to in this Guaranty or any document covering any
security for all or any part of the Obligations; and (vi) to take or omit to
take any action with respect to this Guaranty, any security for all or any part
of the Obligations or any document covering any such security, all as such
officer may determine in his or her sole discretion. The undersigned hereby
certifies that he/she has all necessary authority to grant and execute this
Guaranty on behalf of the Guarantor.
13. Governing Law. This Guaranty has been delivered by the
parties hereto in Chicago, Illinois. Any dispute between the Guarantor and the
Lenders or the Agent arising out of or related to the relationship established
between them in connection with this Guaranty, and whether arising in contract,
tort, equity, or otherwise, shall be resolved in accordance with the internal
laws, and not the conflicts of law provisions, of the State of Illinois.
14. Consent to Jurisdiction; Counterclaims; Forum Non
Conveniens. (a) Exclusive Jurisdiction. Except as provided in subsection (b) of
this Section 14, the Agent, on behalf of itself and the Lenders, and the
Guarantor agree that all disputes between them arising out of or related to the
relationship established between them in connection with this Guaranty, whether
arising in contract, tort, equity, or otherwise, shall be resolved only by state
or federal courts located in Chicago, Illinois, but the parties acknowledge that
any appeals from those courts may have to be heard by a court located outside of
Chicago, Illinois.
(b) Other Jurisdictions. The Lenders and Agent shall have the
right to proceed against the Guarantor or its real or personal property in a
court in any location to enable the Agent or the Lenders to obtain personal
jurisdiction over the Guarantor or to enforce a judgment or other court order
entered in favor of the Agent or the Lenders.
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<PAGE> 85
(c) Venue; Forum Non Conveniens. Each of the Guarantor and the
Agent, on behalf of itself and the Lenders, waives any objection that it may
have (including, without limitation, any objection to the laying of venue or
based on forum non conveniens) to the location of the court in which any
proceeding is commenced in accordance with this Section 14.
15. Waiver of Jury Trial. Each of the Guarantor and the Agent
waives any right to trial by jury in any dispute, whether sounding in contract,
tort, or otherwise, between the Guarantor and the Lenders or the Agent arising
out of or related to the transactions contemplated by this Guaranty or any other
instrument, document or agreement executed or delivered in connection herewith.
Either the Guarantor or the Agent may file an original counterpart or a copy of
this Guaranty with any court as written evidence of the consent of the parties
hereto to the waiver of their right to trial by jury.
16. Waiver of Bond. The Guarantor waives the posting of any
bond otherwise required of the Agent in connection with any judicial process or
proceeding to enforce any judgment or other court order entered in favor of the
Agent, or to enforce by specific performance, temporary restraining order, or
preliminary or permanent injunction, this Guaranty or any other agreement or
document between the Agent and the Guarantor.
17. Advice of Counsel. The Guarantor represents and warrants
that it has consulted with its legal counsel regarding all waivers under this
Guaranty, including without limitation those under Section 4 and Sections 14
through 17 hereof, that it believes that it fully understands all rights that it
is waiving and the effect of such waivers, that it assumes the risk of any
misunderstanding that it may have regarding any of the foregoing, and that it
intends that such waivers shall be a material inducement to the Agent and the
Lenders to extend the indebtedness guaranteed hereby.
18. Notices. All notices and other communications provided to
any party hereto shall be in writing or by facsimile and addressed to such party
at its address set forth below or at such other address as may be designated by
such party in a notice to the other party. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by facsimile, shall be deemed given when transmitted. The
addresses for notices are as follows:
if to the Guarantor, at:
------------------------
------------------------
------------------------
------------------------
if to the Agent, at
Bank One, NA
1 Bank One Plaza
Chicago, Illinois 60670
Attention:
-----------------
Telecopy: 312/732-1117
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<PAGE> 86
19. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
20. Merger. This Guaranty represents the final agreement of
the Guarantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and the Agent or any Lender.
21. Execution in Counterparts. This Guaranty may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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<PAGE> 87
IN WITNESS WHEREOF, this Guaranty has been duly executed by
the Guarantor as of the day and year first set forth above.
-----------------------------------
By:
------------------------------------
Name:
---------------------------
Title:
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<PAGE> 88
EXHIBIT "B-1"
NOTE
$ , 200_
----------- ------------------
The undersigned (the "Borrower") promises to pay to the order of (the
"Lender") the lesser of the principal sum of Dollars or the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to the
Fourth Amended and Restated Credit Agreement (as the same may be amended or
modified, the "Agreement") hereinafter referred to, in immediately available
funds at the main office of Bank One, NA, in Chicago, Illinois, as Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility Termination
Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Fourth Amended and Restated Credit Agreement, dated as of
February 14, 2000, among the Borrower, Bank One, NA, individually and as Agent,
and the lenders named therein, including the Lender, to which Agreement, as it
may be amended from time to time, reference is hereby made for a statement of
the terms and conditions governing this Note, including the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with the
meanings attributed to them in the Agreement.
U.S. HOME CORPORATION
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
81
<PAGE> 89
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF U.S. HOME CORPORATION
DATED ____________, 200_
<TABLE>
<CAPTION>
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- ---------- ----------- ------------ -------
<S> <C> <C> <C> <C>
</TABLE>
82
<PAGE> 90
EXHIBIT "B-2"
AMENDED AND RESTATED NOTE
$ , 200_
----------- ------------------
The undersigned (the "Borrower") promises to pay to the order of ______________
(the "Lender") the lesser of the principal sum of _________ Dollars or the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to the Fourth Amended and Restated Credit Agreement (as the
same may be amended or modified, the "Agreement") hereinafter referred to, in
immediately available funds at the main office of Bank One, NA, in Chicago,
Illinois, as Agent, together with interest on the unpaid principal amount hereof
at the rates and on the dates set forth in the Agreement. The Borrower shall pay
the principal of and accrued and unpaid interest on the Loans in full on the
Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule attached
hereto, or to otherwise record in accordance with its usual practice, the date
and amount of each Loan and the date and amount of each principal payment
hereunder.
This Amended and Restated Note amends and restates a certain Note dated
__________ made by the Borrower payable to the order of the Lender in the
principal amount of $___________, which Note has been cancelled. This Amended
and Restated Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Fourth Amended and Restated Credit Agreement, dated as of
February 14, 2000, among the Borrower, Bank One, NA, individually and as Agent,
and the lenders named therein, including the Lender, to which Agreement, as it
may be amended from time to time, reference is hereby made for a statement of
the terms and conditions governing this Amended and Restated Note, including the
terms and conditions under which this Amended and Restated Note may be prepaid
or its maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them in the
Agreement.
U.S. HOME CORPORATION
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
83
<PAGE> 91
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
AMENDED AND RESTATED NOTE
OF U.S. HOME CORPORATION
DATED ____________, 200_
<TABLE>
<CAPTION>
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- ---------- ----------- ------------ -------
<S> <C> <C> <C> <C>
</TABLE>
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<PAGE> 92
EXHIBIT "C"
COMMITMENT AND ACCEPTANCE
This Commitment and Acceptance (this "Commitment and Acceptance") dated
as of , , is entered into among the parties listed on the signature pages
hereof. Capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed to them in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS
Reference is made to that certain Fourth Amended and Restated Credit
Agreement dated as of February 14, 2000, by and among U.S. Home Corporation, as
Borrower, Bank One, NA, as Agent, and the Lenders that are parties thereto (as
the same may from time to time be amended, modified, supplemented or restated,
in whole or in part and without limitation as to amount, terms, conditions or
covenants, the "Credit Agreement").
Pursuant to Section 2.5(b) of the Credit Agreement, the Borrower has
requested an increase in the Aggregate Commitment from $_______________ to
$__________________. Such increase in the Aggregate Commitment is to become
effective on _______________ __, ____ (the "Increase Date") [THIS DATE IS TO BE
MUTUALLY AGREED UPON BY THE BORROWER, THE ACCEPTING LENDER AND THE AGENT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 2.5(d) OF THE CREDIT AGREEMENT]. In
connection with such requested increase in the Aggregate Commitment, the
Borrower, the Agent and _________________ (the "Accepting Lender") hereby agree
as follows:
1. ACCEPTING LENDER'S COMMITMENT. Effective as of the Increase Date,
[the Accepting Lender shall become a party to the Credit Agreement as a Lender,
shall have all of the rights and obligations of a Lender thereunder, shall agree
to be bound by the terms and provisions thereof and shall thereupon have a
Commitment under and for purposes of the Credit Agreement in and amount equal to
the] [the Commitment of the Accepting Lender under the Credit Agreement shall be
increased from $___________________ to the] amount set forth opposite the
Accepting Lender's name on the signature pages hereof.
[2. REPRESENTATIONS AND AGREEMENTS OF ACCEPTING LENDER. The Accepting
Lender (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements requested by the Accepting
Lender and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Commitment and
Acceptance, (ii) agrees that it will, independently and without reliance upon
the Agent or any Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1, (vi) confirms
that none of the funds, monies, assets or other consideration being used to make
the commitment and acceptance hereunder are "plan assets" as defined under ERISA
and that its
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<PAGE> 93
rights, benefits and interests in and under the Loan Documents will not be "plan
assets" under ERISA, [and (vii) a taches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Accepting Lender is
entitled to receive payments under the Loan Documents without deduction or
withholding of any United States federal income taxes].*
*Paragraph 2 to be inserted only if the Accepting Lender is not already a party
to the Credit Agreement prior to the Increase Date, and subparagraph 2(vii) to
be inserted only if such Accepting Lender is not incorporated under the laws of
the United States, or a state thereof.]
3. REPRESENTATION OF BORROWER. The Borrower hereby represents and
warrants that as of the date hereof and as of the Increase Date, no event or
condition shall have occurred and then be continuing which constitutes a Default
or Unmatured Default.
4. GOVERNING LAW. This Commitment and Acceptance shall be governed by
the internal law, and not the law of conflicts, of the State of Illinois.
5. NOTICES. For the purpose of notices to be given under the Credit
Agreement, the address of the Accepting Lender (until notice of a change is
delivered) shall be the address set forth in Schedule 1.
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<PAGE> 94
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
BORROWER:
U.S. HOME CORPORATION
By:
------------------------
Name:
Title:
AGENT:
[NAME OF AGENT],
as Agent
By:
------------------------
Name:
Title:
$ ACCEPTING LENDER:
--------------
[NAME OF ACCEPTING LENDER]
By:
------------------------
Name:
Title:
87
<PAGE> 95
SCHEDULE 1
to Commitment and Acceptance
1. Attach Accepting Lender's Administrative Information Sheet, which must
include its payment instructions and notice address.
88
<PAGE> 96
EXHIBIT "D"
Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP
89
<PAGE> 97
EXHIBIT "E"
Opinion of Steven Lane, Director-Legal of the Borrower
90
<PAGE> 98
EXHIBIT "F"
Opinion of Lord, Bissell & Brook
91
<PAGE> 99
EXHIBIT "G"
SECOND AMENDED AND RESTATED GUARANTY
This AMENDED AND RESTATED GUARANTY ("Guaranty") is made as of
February 14, 2000 by the undersigned (collectively, the "Guarantors" and
individually a "Guarantor"), in favor of the "Lenders" under that certain Fourth
Amended and Restated Credit Agreement, dated as of February 14, 2000, by and
among U.S. Home Corporation (the "Borrower"), the financial institutions from
time to time parties thereto (collectively, and including the Issuing Bank (as
defined in the Fourth Amended and Restated Credit Agreement) the "Lenders") and
Bank One, NA, in its capacity as Agent. Such Fourth Amended and Restated Credit
Agreement, as it may be amended, modified or supplemented from time to time, is
hereinafter referred to as the "Credit Agreement". Unless otherwise defined
herein, capitalized terms used herein shall have the meanings ascribed to them
in the Credit Agreement.
1. Guaranty. (i) For value received and in consideration of
any loan, advance or financial accommodation of any kind whatsoever heretofore,
now or hereafter made, given or granted to the Borrower by the Lenders, the
Guarantors, jointly and severally, unconditionally guarantee for the benefit of
each of the Lenders the full and prompt payment when due, whether at maturity or
earlier, by reason of acceleration or otherwise, and at all times thereafter, of
all of the Obligations (including, without limitation, interest accruing
following the filing of a bankruptcy petition by or against the Borrower, at the
applicable rate specified in the Credit Agreement, whether or not such interest
is allowed as a claim in bankruptcy).
(ii) At any time after the occurrence of a Default, the
Guarantors shall pay to the Agent, for the benefit of the Lenders, on demand and
in immediately available funds, the full amount of the Obligations. Each of the
Guarantors further agrees to pay to the Agent and reimburse the Agent for, on
demand and in immediately available funds, (a) all reasonable fees, costs and
expenses (including, without limitation, all court costs and reasonable
attorneys' and paralegals' fees, costs and expenses) paid or incurred by the
Agent or any of the Lenders in: (1) endeavoring to collect all or any part of
the Obligations from, or in prosecuting any action against, such Guarantor
relating to this Guaranty; (2) taking any action with respect to any security or
collateral securing such Guarantor's obligations hereunder; and (3) preserving,
protecting or defending the enforceability of, or enforcing, this Guaranty or
their respective rights hereunder (all such reasonable costs and expenses are
hereinafter referred to as the "Expenses"). Each of the Guarantors hereby agrees
that this Guaranty is an absolute guaranty of payment and is not a guaranty of
collection.
2. Obligations Unconditional. Subject to Section 10, each of
the Guarantors hereby agrees that its obligations under this Guaranty shall be
unconditional, irrespective of: (i) the validity, enforceability, avoidance,
novation or subordination of any of the Obligations or any of the Loan
Documents; (ii) the absence of any attempt by, or on behalf of, any Lender or
the Agent to collect, or to take any other action to enforce, all or any part of
the Obligations whether from or against the Borrower, any other guarantor
(including any Guarantor) of the Obligations or any other Person; (iii) the
election of any remedy by, or on behalf of, any Lender or the Agent with respect
to all or any part of the Obligations; (iv) the waiver, consent, extension,
forbearance or granting of any indulgence by, or on behalf of, any Lender or the
Agent with
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respect to any provision of any of the Loan Documents; (v) the election by, or
on behalf of, any one or more of the Lenders, in any proceeding instituted under
Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the
"Bankruptcy Code"), of the application of Section 1111(b)(2) of the Bankruptcy
Code; (vi) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code; (vii) the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of any of the Lenders or the Agent for repayment of all or any part
of the Obligations or any Expenses; or (viii) any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of the Borrower
or such Guarantor.
3. Enforcement; Application of Payments. Upon the occurrence
of a Default, the Agent may proceed directly and at once, without notice,
against the Guarantors or any one or more of them to obtain performance of and
to collect and recover the full amount, or any portion, of the Obligations,
without first proceeding against the Borrower or any other Person, or against
any security or collateral for the Obligations. Subject only to the terms and
provisions of the Credit Agreement, the Agent shall have the exclusive right to
determine the application of payments and credits, if any, from the Guarantors,
the Borrower or from any other Person on account of the Obligations or any other
liability of the Guarantor to any Lender.
4. Waivers. (a) Each of the Guarantors hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of receivership or bankruptcy of the Borrower, protest or notice with
respect to the Obligations, all setoffs and counterclaims and all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor and notices of acceptance of this Guaranty, the
benefits of all statutes of limitation, and all other demands whatsoever (and
shall not require that the same be made on the Borrower as a condition precedent
to any Guarantor's obligations hereunder), and covenants that this Guaranty will
not be discharged, except by complete payment (in cash) and performance of the
Obligations and any other obligations contained herein. Each of the Guarantors
further waives all notices of the existence, creation or incurring of new or
additional indebtedness, arising either from additional loans extended to the
Borrower or otherwise, and also waives all notices that the principal amount, or
any portion thereof, and/or any interest on any instrument or document
evidencing all or any part of the Obligations is due, notices of any and all
proceedings to collect from the maker, any endorser or any other guarantor
(including any Guarantor) of all or any part of the Obligations, or from any
other Person, and, to the extent permitted by law, notices of exchange, sale,
surrender or other handling of any security or collateral given to the Agent to
secure payment of all or any part of the Obligations.
(b) Each of the Guarantors understands that it shall be liable
for the full amount of its liability under this Guaranty, notwithstanding the
occurrence of any event impairing the right of such Guarantor, the Agent or any
of the Lenders to proceed against the Borrower or its property or any other
guarantor (including any Guarantor) or its property. Each of the Guarantors
agrees that all of its obligations under this Guaranty (including its obligation
to pay in full all indebtedness evidenced by or arising under the Credit
Agreement) shall remain in full force and effect without defense, offset or
counterclaim of any kind, notwithstanding that such Guarantor's rights against
the Borrower may be impaired, destroyed or otherwise affected by reason of any
action or inaction on the part of the Agent or any Lender.
(c) The Lenders, either themselves or acting through the
Agent, are hereby authorized, without notice or demand and without affecting the
liability of the Guarantors
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hereunder, from time to time, (i) to renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, all or any part of
the Obligations, or to otherwise modify, amend or change the terms of any of the
Loan Documents; (ii) to accept partial payments on all or any part of the
Obligations; (iii) to take and hold security or collateral for the payment of
all or any part of the Obligations, this Guaranty, or any other guaranties of
all or any part of the Obligations or other liabilities of the Borrower, (iv) to
exchange, enforce, waive and release any such security or collateral; (v) to
apply such security or collateral and direct the order or manner of sale thereof
as in their discretion they may determine; and (vi) to settle, release,
exchange, enforce, waive, compromise or collect or otherwise liquidate all or
any part of the Obligations, all or any part of the obligations of one or more
Guarantors under this Guaranty, any other guaranty of all or any part of the
Obligations, or any security or collateral for the Obligations or for any such
guaranty. Any of the foregoing may be done in any manner, without affecting or
impairing the obligations of the Guarantors hereunder.
5. Setoff. At any time after all or any part of the
Obligations have become due and payable (by acceleration or otherwise) following
the occurrence of a Default, each Lender and the Agent may, without notice to
the Guarantors and regardless of the acceptance of any security or collateral
for the payment hereof, appropriate and apply toward the payment of all or any
part of the Obligations (i) any indebtedness due or to become due from such
Lender or the Agent to any one or more of the Guarantors, and (ii) any moneys,
credits or other property belonging to any Guarantor, at any time held by or
coming into the possession of such Lender or the Agent or any of their
respective affiliates.
6. Financial Information. Each of the Guarantors hereby
assumes responsibility for keeping itself informed of the financial condition of
the Borrower and any and all endorsers and/or other guarantors of all or any
part of the Obligations, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations, or any part thereof, that diligent inquiry would
reveal, and each of the Guarantors hereby agrees that none of the Lenders nor
the Agent shall have any duty to advise any Guarantor of information known to
any of them regarding such condition or any such circumstances. In the event any
Lender, in its sole discretion, undertakes at any time or from time to time to
provide any such information to any one or more of the Guarantors, such Lender
shall be under no obligation (i) to provide information to any other Guarantor,
(ii) to undertake any investigation not a part of its regular business routine,
(iii) to disclose any information which such Lender, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (iv) to make any other or future disclosures of such information
or any other information to any one or more of the Guarantors.
7. No Marshalling; Reinstatement. Each of the Guarantors
consents and agrees that none of the Lenders nor the Agent nor any Person acting
for or on behalf of the Lenders or the Agent shall be under any obligation to
marshall any assets in favor of any one or more of the Guarantors or against or
in payment of any or all of the Obligations. Each of the Guarantors further
agrees that, to the extent that the Borrower, such Guarantor or any other
guarantor (including any Guarantor) of all or any part of the Obligations makes
a payment or payments to any Lender or the Agent, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to the Borrower, such
Guarantor, such other guarantor (including any Guarantor) or any other Person,
or their respective estates, trustees, receivers or any other party, including,
without limitation, such Guarantor, under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of such payment or
repayment, the part of the Obligations which has been
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<PAGE> 102
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
8. Subrogation. Until the Obligations have been paid in full,
the Guarantors (i) shall have no right of subrogation with respect to such
Obligations and (ii) waive any right to enforce any remedy which the Lenders or
the Agent (or any of them) now have or may hereafter have against the Borrower,
any endorser or any guarantor (including any Guarantor) of all or any part of
the Obligations or any other Person, and each of the Guarantors waives any
benefit of, and any right to participate in, any security or collateral given to
the Lenders and the Agent (or any of them) to secure the payment or performance
of all or any part of the Obligations or any other liability of the Borrower to
the Lenders.
9. Enforcement; Amendments; Waivers. No delay on the part of
any of the Lenders or the Agent in the exercise of any right or remedy arising
under this Guaranty, the Credit Agreement, any of the other Loan Documents or
otherwise with respect to all or any part of the Obligations or any other
guaranty of or security for all or any part of the Obligations shall operate as
a waiver thereof, and no single or partial exercise by any such Person of any
such right or remedy shall preclude any further exercise thereof. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon the Lenders or the Agent, except as expressly set forth in a
writing duly signed and delivered by the party making such modification or
waiver. Failure by any of the Lenders or the Agent at any time or times
hereafter to require strict performance by the Borrower, any one or more of the
Guarantors, any other guarantor of all or any part of the Obligations or any
other Person of any of the provisions, warranties, terms and conditions
contained in any of the Loan Documents now or at any time or times hereafter
executed by such Persons and delivered to the Agent or any Lender shall not
waive, affect or diminish any right of the Agent or such Lender at any time or
times hereafter to demand strict performance thereof and such right shall not be
deemed to have been waived by any act or knowledge of the Agent or any Lender,
or their respective agents, officers or employees, unless such waiver is
contained in an instrument in writing, directed and delivered to the Borrower or
the Guarantors, as applicable, specifying such waiver, and is signed by the
party or parties necessary to give such waiver under the Credit Agreement. No
waiver of any Default by the Agent or any Lender shall operate as a waiver of
any other Default or the same Default on a future occasion, and no action by the
Agent or any Lender permitted hereunder shall in any way affect or impair the
Agent's or any Lender's rights and remedies or the obligations of the Guarantors
under this Guaranty. Any determination by a court of competent jurisdiction of
the amount of any principal and/or interest owing by the Borrower to any of the
Lenders shall be conclusive and binding on the Guarantors irrespective of
whether any of the Guarantors was a party to the suit or action in which such
determination was made.
10. Effectiveness; Termination. This Guaranty shall become
effective upon its execution by the Guarantors and shall continue in full force
and effect and may not be terminated or otherwise revoked until the Obligations
shall have been fully paid (in cash) and discharged and the Credit Agreement and
all financing arrangements between the Borrower and the Lenders shall have been
terminated. If, notwithstanding the foregoing, any Guarantor shall have any
right under applicable law to terminate or revoke this Guaranty, each such
Guarantor agrees that such termination or revocation shall not be effective
until a written notice of such revocation or termination, specifically referring
hereto, signed by such Guarantor, is actually received by the Agent. Such notice
shall not affect the right and power of any of the Lenders or the Agent to
enforce rights arising prior to receipt thereof by the Agent. If any Lender
grants loans or takes
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other action after a Guarantor terminates or revokes this Guaranty but before
the Agent receives such written notice, the rights of such Lender with respect
thereto shall be the same as if such termination or revocation had not occurred.
11. Successors and Assigns. This Guaranty shall be binding
upon the Guarantors and upon their respective successors and assigns and shall
inure to the benefit of the Lender and the Agent and their respective successors
and assigns; all references herein to the Borrower and to the Guarantors shall
be deemed to include their respective successors and assigns. The successors and
assigns of the Guarantors and the Borrower shall include, without limitation,
their respective receivers, trustees or debtors-in-possession. All references to
the singular shall be deemed to include the plural where the context so
requires.
12. Officer Authority. Each of the Guarantors authorizes its
Chairman, President, and each of its Vice Presidents, respectively, from time to
time, severally and not jointly, on behalf and in the name of such Guarantor
from time to time in the discretion of such officer, to take or omit to take any
and all action and to execute and deliver any and all documents and instruments
which such officer may determine to be necessary or desirable in relation to,
and perform any obligations arising in connection with, this Guaranty and any of
the transactions contemplated hereby, and, without limiting the generality of
the foregoing, hereby gives to each such officer severally the power and right
on behalf of such Guarantor, without notice to or assent by such Guarantor, to
do the following: (i) to execute and deliver any amendment, waiver, consent,
supplement, other modification or reaffirmation of this Guaranty or any document
relating hereto, and to perform any obligation arising in connection herewith or
therewith; (ii) to sell, transfer, assign, encumber or otherwise deal in or with
any security for this Guaranty or any part thereof; (iii) to grant liens,
security interests or other encumbrances on or in respect of any property or
assets of such Guarantor, whether now owned or hereafter acquired, in favor of
the Lenders and the Agent; (iv) to send notices, directions, orders and other
communications to any Person relating to this Guaranty, or any security for all
or any part of the Obligations; (v) to take or omit to take any other action
contemplated by or referred to in this Guaranty or any document covering any
security for all or any part of the Obligations; and (vi) to take or omit to
take any action with respect to this Guaranty, any security for all or any part
of the Obligations or any document covering any such security, all as such
officer may determine in his or her sole discretion. The undersigned hereby
certifies that he/she has all necessary authority to grant and execute this
Guaranty on behalf of the Guarantors.
13. Governing Law. This Guaranty has been delivered by the
parties hereto in Chicago, Illinois. Any dispute between any one or more of the
Guarantors and the Lenders or the Agent arising out of or related to the
relationship established between them in connection with this Guaranty, and
whether arising in contract, tort, equity, or otherwise, shall be resolved in
accordance with the internal laws, and not the conflicts of law provisions, of
the State of Illinois.
14. Consent to Jurisdiction; Counterclaims; Forum Non
Conveniens. (a) Exclusive Jurisdiction. Except as provided in subsection (b) of
this Section 14, the Agent, on behalf of itself and the Lenders, and each of the
Guarantors agree that all disputes between them arising out of or related to the
relationship established between them in connection with this Guaranty, whether
arising in contract, tort, equity, or otherwise, shall be resolved only by state
or federal courts located in Chicago, Illinois, but the parties acknowledge that
any appeals from those courts may have to be heard by a court located outside of
Chicago, Illinois.
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(b) Other Jurisdictions. The Lenders and Agent shall have the
right to proceed against any one or more of the Guarantors or their real or
personal property in a court in any location to enable the Agent or the Lenders
to obtain personal jurisdiction over such Guarantor or to enforce a judgment or
other court order entered in favor of the Agent or the Lenders.
(c) Venue; Forum Non Conveniens. Each of the Guarantors and
the Agent, on behalf of itself and the Lenders, waive any objection that it may
have (including, without limitation, any objection to the laying of venue or
based on forum non conveniens) to the location of the court in which any
proceeding is commenced in accordance with this Section 14.
15. Waiver of Jury Trial. Each of the Guarantors and the Agent
waive any right to trial by jury in any dispute, whether sounding in contract,
tort, or otherwise, between any one or more of the Guarantors and the Lenders or
the Agent arising out of or related to the transactions contemplated by this
Guaranty or any other instrument, document or agreement executed or delivered in
connection herewith. A Guarantor or the Agent may file an original counterpart
or a copy of this Guaranty with any court as written evidence of the consent of
the parties hereto to the waiver of their right to trial by jury.
16. Waiver of Bond. Each of the Guarantors waives the posting
of any bond otherwise required of the Agent in connection with any judicial
process or proceeding to enforce any judgment or other court order entered in
favor of the Agent, or to enforce by specific performance, temporary restraining
order, or preliminary or permanent injunction, this Guaranty or any other
agreement or document between the Agent and any one or more of the Guarantors.
17. Advice of Counsel. Each of the Guarantors represents and
warrants that it has consulted with its legal counsel regarding all waivers
under this Guaranty, including without limitation those under Section 4 and
Sections 14 through 17 hereof, that it believes that it fully understands all
rights that it is waiving and the effect of such waivers, that it assumes the
risk of any misunderstanding that it may have regarding any of the foregoing,
and that it intends that such waivers shall be a material inducement to the
Agent and the Lenders to extend the indebtedness guaranteed hereby.
18. Notices. All notices and other communications provided to
any party hereto shall be in writing or by facsimile and addressed to such party
at its address set forth below or at such other address as may be designated by
such party in a notice to the other party. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by facsimile, shall be deemed given when transmitted. The
addresses for notices are as follows:
if to a Guarantor, at:
c/o U.S. Home Corporation
1070 Clay Road
Houston, Texas 77041
Attention: Thomas A. Napoli
if to the Agent, at
Bank One, NA
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Chris Flynn
Telecopy: 312/732-1117
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19. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
20. Merger. This Guaranty represents the final agreement of
the Guarantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between any Guarantor and the Agent or any Lender. This
Guaranty amends and restates in its entirety the Guaranties heretofore executed
and delivered by the Guarantors with respect to the Original Agreement.
21. Execution in Counterparts. This Guaranty may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by
the Guarantor as of the day and year first set forth above.
BRUSH MASTERS, INC.
CANTERBURY CORPORATION
COUNTRYPLACE GOLF COURSE, INC.
E.M.J.V. CORP.
HOMECRAFT CORPORATION
IMPERIAL HOMES CORPORATION
LUNDGREN BROS. CONSTRUCTION, INC.
MID-COUNTY UTILITIES, INC.
OCEANPOINTE DEVELOPMENT CORPORATION
ORRIN THOMPSON CONSTRUCTION COMPANY
ORRIN THOMPSON HOMES CORP.
PAPARONE CONSTRUCTION COMPANY
PRAIRIE LAKE CORPORATION
RIVENHOME CORPORATION
RUTENBERG HOMES, INC. (Florida)
RUTENBERG HOMES, INC. (Texas)
STONEY CORPORATION
STONEYBROOK GOLF CLUB OF FORT MYERS, INC.
USH ACQUISITION CORP.
USH EQUITY CORPORATION
USH HOLDING, INC.
USH MILLENIUM VENTURES CORP.
USH/MJR, INC.
USH (WEST LAKE), INC.
USH WOODBRIDGE, INC.
U.S. HOME CORPORATION OF NEW YORK
U.S. HOME OF ARIZONA CONSTRUCTION CO.
U.S. HOME OF COLORADO REAL ESTATE, INC.
U.S. HOME REALTY CORPORATION
U.S. HOME REALTY, INC. (Maryland)
U.S. HOME REALTY, INC. (Texas)
U.S. HOME AND DEVELOPMENT CORPORATION
U.S.H. CORPORATION OF NEW YORK
U.S.H. LOS PRADOS, INC.
WESTSTONE CORPORATION
By:
---------------------------------------
Name: Thomas A. Napoli
Title: Vice President
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EXHIBIT "H"
THIRD AMENDED AND RESTATED CONTRIBUTION
AND INDEMNITY AGREEMENT
THIS THIRD AMENDED AND RESTATED CONTRIBUTION AND INDEMNITY
AGREEMENT (the "Agreement") is made as of February 14, 2000, by and among the
undersigned (collectively, the "Guarantors").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery hereof,
U.S. Home Corporation (the "Borrower") has executed and delivered that certain
Fourth Amended and Restated Credit Agreement (as such document may be modified
and amended from time to time, the "Credit Agreement"), dated as of the date
hereof, providing for Loans to be made from time to time by the Lenders
identified in the Credit Agreement to the Borrower in a principal amount not to
exceed $410,000,000 (capitalized terms used herein, but not defined herein,
shall have the meanings provided for such terms in the Credit Agreement);
WHEREAS, the Guarantors have each executed and delivered that
certain Second Amended and Restated Guaranty of even date herewith, pursuant to
which the Guarantors guaranty the payment of all Obligations; and
WHEREAS, the Guarantors are parties to that certain Second
Amended and Restated Contribution and Indemnity Agreement dated as of September
11, 1998, as amended (the "Original Contribution Agreement"); and
WHEREAS, the Lenders have required as a condition, among
others, to the making of the Loans, that the Guarantors execute and deliver this
Agreement for the purpose of amending and restating the Original Contribution
Agreement in its entirety.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantors hereby
covenant and agree that the Original Contribution Agreement is amended and
restated in its entirety as follows:
1. Allocable Amount. As used in this Agreement, the "Allocable
Amount" of any Guarantor, as of any date of determination, shall be determined
to be an amount equal to ninety-five percent (95%) of the maximum amount which
could then be claimed against such Guarantor without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the United States
Federal Bankruptcy Code (11 U.S.C. Sec. 101 et -- seq.) or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law.
2. Allocable Share. As used in this Agreement, the term
"Allocable Share" means, at the relevant time of calculation with respect to any
Guarantor, a fraction, the numerator of which equals such Guarantor's Allocable
Amount and the denominator of which equals the Allocable Amounts of all the
Guarantors.
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3. Contribution and Indemnification. (a) To the extent that a
payment is made on the Obligations by a Guarantor (a "Guarantor Payment") which,
taking into account all other Guarantor Payments then previously or concurrently
made by or attributable to any other Guarantor, exceeds such Guarantor's
Allocable Share of all such Guarantor Payments (as such share would then be
calculated immediately prior to such Guarantor Payment), then such Guarantor
shall be entitled to contribution and indemnification from, and to be reimbursed
by, each of the other Guarantors for the amount of such excess, pro rata based
upon their respective Allocable Shares as in effect immediately prior to such
Guarantor Payment.
(b) Notwithstanding the foregoing, the Guarantors may, as
among themselves, provide for an allocation consistent with the foregoing which
requires the Guarantors that received a direct financial benefit from the
Obligations in respect of which a payment by a Guarantor has been made and for
which contribution is sought to make contribution payments before the Guarantors
that did not receive a direct financial benefit are obligated to make
contribution payments.
(c) The Guarantors acknowledge that the rights of contribution
and indemnification hereunder shall constitute an asset in favor of any
Guarantor to which such contribution and indemnification is owing.
4. Purpose of Agreement. This Agreement is intended only to
define the relative rights of the Guarantors, and nothing set forth in this
Agreement is intended to or shall impair the obligations of any of the
Guarantors with respect to the Obligations, the Guaranty or any of the other
Loan Documents.
5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
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IN WITNESS WHEREOF, the Guarantors have executed this
Agreement as of the day and year first above written.
BRUSH MASTERS, INC.
CANTERBURY CORPORATION
COUNTRYPLACE GOLF COURSE, INC.
E.M.J.V. CORP.
HOMECRAFT CORPORATION
IMPERIAL HOMES CORPORATION
LUNDGREN BROS. CONSTRUCTION, INC.
MID-COUNTY UTILITIES, INC.
OCEANPOINTE DEVELOPMENT CORPORATION
ORRIN THOMPSON CONSTRUCTION COMPANY
ORRIN THOMPSON HOMES CORP.
PAPARONE CONSTRUCTION COMPANY
PRAIRIE LAKE CORPORATION
RIVENHOME CORPORATION
RUTENBERG HOMES, INC. (Florida)
RUTENBERG HOMES, INC. (Texas)
STONEY CORPORATION
STONEYBROOK GOLF CLUB OF FT. MYERS, INC.
USH ACQUISITION CORP.
USH EQUITY CORPORATION
USH HOLDING, INC.
USH MILLENIUM VENTURES CORP.
USH/MJR, INC.
USH (WEST LAKE), INC.
USH WOODBRIDGE, INC.
U.S. HOME CORPORATION OF NEW YORK
U.S. HOME OF ARIZONA CONSTRUCTION CO.
U.S. HOME OF COLORADO REAL ESTATE, INC.
U.S. HOME REALTY CORPORATION
U.S. HOME REALTY, INC. (Maryland)
U.S. HOME REALTY, INC. (Texas)
U.S. HOME AND DEVELOPMENT CORPORATION
U.S.H. CORPORATION OF NEW YORK
U.S.H. LOS PRADOS, INC.
WESTSTONE CORPORATION
By:
----------------------------------
Thomas A. Napoli
Vice President
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EXHIBIT "I"
THIRD AMENDED AND RESTATED SUBORDINATION AGREEMENT
This Third Amended and Restated Subordination Agreement (as the same
may from time to time be amended, modified or restated, the "Agreement") entered
into by and between the parties signatory hereto (together with their successors
and assigns, individually, a "Noteholder" and collectively, the "Noteholders"),
and Bank One, NA, as agent (the "Agent") for itself and the other "Senior
Lenders" (as defined below).
W I T N E S S E T H:
WHEREAS, the Noteholders are subsidiaries of Borrower, and Borrower may
now or hereafter be indebted to the Noteholders (all such indebtedness or any
notes or other instruments evidencing such indebtedness being herein referred to
as the "Subordinated Notes");
WHEREAS, the Borrower has entered into that certain Fourth Amended and
Restated Credit Agreement of even date herewith (as the same may from time to
time be amended, modified, supplemented or restated, in whole or in part and
without limitation as to amount, terms, conditions or covenants, the "Credit
Agreement") with the Agent and the Senior Lenders;
WHEREAS, Borrower is presently indebted to the Senior Lenders as a
result of the advance of monies and other extensions of credit by the Senior
Lenders to Borrower pursuant to the Credit Agreement;
WHEREAS, the Noteholders acknowledge that the loan or advance of monies
or other extensions of any financial accommodation or credit to Borrower by the
Senior Lenders is of value to the Noteholders; and
WHEREAS, the Noteholders have heretofore executed and delivered that
certain Second Amended and Restated Subordination Agreement, dated as of
September 11, 1998, as amended (the "Original Subordination Agreement").
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged by the Noteholders, and in order to induce the Senior
Lenders, now or from time to time hereafter, to make loans or extend credit or
any other financial accommodation to or for the benefit of Borrower; or to grant
such renewals, increases or extensions thereof as the Senior Lenders may deem
advisable; and to better secure the Senior Lenders in respect of the foregoing,
each of the Noteholders hereby agrees with the Agent and the Senior Lenders that
the Original Subordination Agreement is hereby amended and restated in its
entirety as hereinafter set forth.
1. CERTAIN DEFINED TERMS. In addition to the terms defined above and
elsewhere in this Agreement, the following terms used in this Agreement shall
have the following meanings, applicable both to the singular and the plural
forms of the terms defined:
As used in this Agreement:
"BORROWER" shall mean U.S. Home Corporation, a corporation or any
successor or assign, including, without limitation, a receiver, trustee or
debtor-in-possession.
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"SENIOR DEBT" shall mean all "Obligations" (as defined in the Credit
Agreement). Senior Debt shall be considered to be outstanding whenever any
Senior Lender has an outstanding commitment therefor.
"SENIOR LENDERS" shall mean each of the financial institutions from
time to time party to the Credit Agreement and each other holder of the Senior
Debt and shall include the "Issuing Bank" under the Credit Agreement.
"SUBORDINATED DEBT" shall mean (a) all principal of, and premium, if
any, and interest on, the Subordinated Notes and (b) all other indebtedness,
fees, expenses, obligations and liabilities of the Borrower (or any other
person, firm, partnership or corporation for the benefit of Borrower) to any
Noteholders, whether now existing or hereafter incurred or created, in each
case, whether such amounts are due or not due, direct or indirect, absolute or
contingent; provided, however, Subordinated Debt shall include only such amounts
in excess of $10,000,000 at any time outstanding.
2. STANDBY; SUBORDINATION; SUBROGATION. The payment and performance of
the Subordinated Debt is hereby subordinated to the Senior Debt and, except as
set forth in Sections 3 and 4 below, none of the Noteholders will accelerate,
ask, demand, sue for, take or receive from Borrower, by setoff or in any other
manner, the whole or any part of the Subordinated Debt, including, without
limitation, the taking of any negotiable instruments evidencing such amounts,
nor any security for any of the Subordinated Debt, unless and until all of the
Senior Debt shall have been fully and indefeasibly paid and satisfied in cash
and all financing arrangements among Borrower, the Agent and the Senior Lenders
have been terminated. Each of the Noteholders also hereby agrees that,
regardless of whether the Senior Debt is secured or unsecured, the Senior
Lenders shall be subrogated for the Noteholders with respect to the Noteholders'
claims against Borrower and the Noteholders' rights, liens and security
interests, if any, in any of Borrower's assets or any other assets securing the
Senior Debt and the proceeds thereof until all of the Senior Debt has been fully
and indefeasibly paid and satisfied in cash and all financing arrangements among
Borrower, the Agent and the Senior Lenders have been terminated.
3. PERMITTED PAYMENTS. Notwithstanding the provisions of Section 2 of
this Agreement, until the occurrence of a "Default" (as defined in the Credit
Agreement), and provided that (i) there shall not then exist any breach of this
Agreement by any of the Noteholders which has not been waived, in writing, by
the Agent, and (ii) the payment described below, if made, would not give rise to
the occurrence of a Default or the Senior Lenders' making an advance to Borrower
in excess of amounts otherwise then available to Borrower under the terms of the
Credit Agreement, Borrower may pay to the Noteholders, and the Noteholders may
accept from Borrower, any and all payments of the Subordinated Debt ("Permitted
Payments"), it being understood and agreed by the Noteholders that Subordinated
Debt may not be modified or amended in a manner that adversely affects the
Senior Lenders without the prior written consent of the Agent on behalf of the
Senior Lenders.
4. ENFORCEMENT RIGHTS. Each of the Noteholders, prior to the
indefeasible payment in full of the Senior Debt and the termination of the
Credit Agreement among the Borrower and the Senior Lenders, shall have no right
to enforce any claim with respect to the Subordinated Debt, including, without
limitation, any Permitted Payment, or otherwise to take any action against
Borrower or Borrower's property without the Senior Lenders' prior written
consent.
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5. LIENS; PERMITTED TRANSFERS; PERMITTED CHANGE OF CONTROL. Each of the
Noteholders hereby represents as of the date hereof that it has not been granted
or obtained any liens or security interests in any assets of the Borrower or any
other assets securing the Senior Debt. Each of the Noteholders agrees that,
without the prior written consent of the Agent and each of the Senior Lenders,
no Noteholder shall take any liens on or security interests in any assets of the
Borrower. The Noteholders acknowledge and agree that, to the extent the terms
and provisions of this Agreement are inconsistent with the Subordinated Notes,
the Subordinated Notes shall be deemed to be subject to this Agreement.
Notwithstanding any provision contained in the Subordinated Notes accelerating
the Subordinated Debt or requiring a mandatory prepayment or put of all or any
part of the Subordinated Debt upon the occurrence of a default or other event,
no such default or other event shall result in any such acceleration of the
Subordinated Debt, mandatory prepayment with respect to the Subordinated Debt or
put of any portion of the Subordinated Debt, all of which are hereby waived by
the Noteholders, unless and until all of the Senior Debt shall have been fully
and indefeasibly paid and satisfied in cash and all financing arrangements among
Borrower, the Agent and the Senior Lenders have been terminated.
6. SUBORDINATED DEBT OWED ONLY TO THE NOTEHOLDERS. The Noteholders
warrant and represent that (a) the Noteholders have not previously assigned any
interest in the Subordinated Debt or any security interest in connection
therewith, if any; (b) no other party owns an interest in the Subordinated Debt
or security therefor other than the Noteholders (whether as joint holders of the
Subordinated Debt, participants or otherwise); and (c) the entire Subordinated
Debt is owing only to the Noteholders. Each of the Noteholders covenants that
the entire Subordinated Debt shall continue to be owing only to the Noteholders
and all security therefor shall continue to be held solely for the benefit of
the Noteholders unless assigned in accordance with the terms of this Agreement.
7. SENIOR LENDER PRIORITY. In the event of the occurrence of a Default
(as defined in the Credit Agreement) (i) the Agent and the Senior Lenders shall
be entitled to receive indefeasible payment in full in cash of any and all of
the Senior Debt prior to the payment of all or any part of the Subordinated
Debt, and (ii) any payment or distribution of any kind or character, whether in
cash, securities or other property, which shall be payable or deliverable upon
or with respect to any or all of the Subordinated Debt shall be paid or
delivered directly to Agent for application on any of the Senior Debt, due or
not due, until the Senior Debt shall have first been fully and indefeasibly paid
and satisfied in cash.
8. GRANT OF AUTHORITY TO AGENT. In the event of the occurrence of any
event described in Section 7 above, and in order to enable the Agent and the
Senior Lenders to enforce their rights hereunder in any of the aforesaid actions
or proceedings, Agent is hereby irrevocably authorized and empowered, in the
Agent's discretion, to file, make and present for and on behalf of the
Noteholders such proofs of claims against Borrower on account of the
Subordinated Debt or other motions or pleadings as the Agent may deem expedient
or proper and to vote such proofs of claims in any such proceeding and to
receive and collect any and all dividends or other payments or disbursements
made thereon in whatever form the same may be paid or issued and to apply the
same on account of any portion of the Senior Debt. In voting such proofs of
claim in any proceeding, the Agent may act in a manner consistent with the sole
interest of the Senior Lenders and the Agent shall have no duty to take any
action to optimize or maximize the Noteholders' recovery with respect to its
claim. The Noteholders irrevocably authorize and empower the Agent to demand,
sue for, collect and receive each of the aforesaid payments and
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distributions described in Section 7 above and give acquittance therefor and to
file claims and take such other actions, in the Agent's own name or in the name
of the Noteholders or otherwise, as the Agent may deem necessary or advisable
for the enforcement of this Agreement. Each of the Noteholders will execute and
deliver to the Agent such powers of attorney, assignments and other instruments
or documents, including notes and stock certificates (together with such
assignments or endorsements as the Agent shall deem necessary), as may be
requested by the Agent in order to enable the Agent and to enforce any and all
claims of the Agent and the Senior Lenders upon or with respect to any or all of
the Subordinated Debt and to collect and receive any and all payments and
distributions which may be payable or deliverable at any time upon or with
respect to the Subordinated Debt, all for the Agent's and the Senior Lenders'
own benefit.
9. PAYMENTS RECEIVED BY THE NOTEHOLDERS. Except for Permitted Payments
received by the Noteholders prior to the occurrence of a Default as provided in
Section 3 above, should any payment or distribution or security or instrument or
proceeds thereof be received by any Noteholder upon or with respect to the
Subordinated Debt or any other obligations of Borrower to any Noteholder prior
to the indefeasible payment in full in cash of all of the Senior Debt and
termination of all financing arrangements among Borrower, the Agent and the
Senior Lenders, the Noteholders shall receive and hold the same in trust, as
trustee, for the benefit of the Agent and the Senior Lenders, and shall
forthwith deliver the same to the Agent, in precisely the form received (except
for the endorsement or assignment of the Noteholders where necessary), for
application on any of Senior Debt, due or not due, and, until so delivered, the
same shall be held in trust by such Noteholder as the property of the Agent and
the Senior Lenders. In the event of the failure of any Noteholder to make any
such endorsement or assignment to the Agent, the Agent, or any of its officers
or employees, is hereby irrevocably authorized to make the same.
10. CONTINUING NATURE OF SUBORDINATION. This Agreement shall be
effective and may not be terminated or otherwise revoked by any Noteholder until
the Senior Debt shall have been indefeasibly paid in full in cash and satisfied
and the Credit Agreement among Borrower, the Agent and the Senior Lenders have
been terminated. In the event the Noteholders shall have any right under
applicable law otherwise to terminate or revoke this Agreement which right
cannot be waived, such termination or revocation shall not be effective until
written notice of such termination or revocation, signed by any such Noteholder,
is actually received by the Agent's officer responsible for such matters. In the
absence of the circumstances described in the immediately preceding sentence,
this is a continuing agreement of subordination and the Agent and the Senior
Lenders may continue, at any time and without notice to the Noteholders, to
extend credit or other financial accommodations and loan monies to or for the
benefit of Borrower on the faith hereof. Any termination or revocation described
hereinabove shall not affect this Agreement in relation to (a) any of the Senior
Debt which arose or was committed to prior to receipt thereof or (b) any of the
Senior Debt created after receipt thereof, if such Senior Debt was incurred
through readvances by the Senior Lenders pursuant to the Senior Lenders'
financing arrangements with Borrower, including, without limitation, advances or
readvances, in an aggregate outstanding amount not to exceed the sum of the
Aggregate Commitment (as defined in the Credit Agreement as in effect on the
date of receipt of any such notice and as may be increased pursuant to the
provisions of the Credit Agreement). If, in reliance on this Agreement, any
Senior Lender makes loans or other advances to or for the benefit of Borrower or
takes other action under the Credit Agreement after such aforesaid termination
or revocation by the Noteholder but prior to the receipt by the Agent of said
written notice as set forth above, the rights of the Senior Lenders shall be the
same as if such termination or revocation had not occurred.
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11. ADDITIONAL AGREEMENTS BETWEEN THE AGENT, THE SENIOR LENDERS AND
BORROWER. The Agent or any Senior Lender, at any time and from time to time,
either before or after any such aforesaid notice of termination or revocation,
may enter into such agreement or agreements with Borrower as the Agent or any
Senior Lender may deem proper, extending the time of payment of or renewing or
otherwise altering the terms, including, without limitation increasing the
principal amount thereof, of all or any portion of the Senior Debt or obtaining
security for any or all of the Senior Debt, and may exchange, sell, release,
surrender or otherwise deal with any such security, without in any way thereby
impairing or affecting this Agreement.
12. NOTEHOLDERS' WAIVERS. All of the Senior Debt shall be deemed to
have been made or incurred in reliance upon this Agreement. The Noteholders
expressly waive all notice of the acceptance by the Agent or any Senior Lender
of the subordination and other provisions of this Agreement and all other
notices not specifically required pursuant to the terms of this Agreement
whatsoever, and the Noteholders expressly waive reliance by the Agent and the
Senior Lenders upon the subordination and other agreements as herein provided.
The Noteholders further agree that in the event Borrower consents or fails to
object to a proposed retention of such assets (or a portion thereof) by the
Agent or the Senior Lenders in satisfaction of the Senior Debt (or a portion
thereof), the Noteholders hereby consent to such proposed retention regardless
of whether the Noteholders are provided with notice of such proposed retention.
The Noteholders agree that the Noteholders will not interfere with or in any
manner oppose a disposition of any assets securing the Senior Debt by the Agent
or any Senior Lender. The Noteholders agree that neither the Agent nor any
Senior Lender has made any warranties or representations with respect to the due
execution, legality, validity, completeness or enforceability of the Credit
Agreement, or the collectibility of the Senior Debt, that the Agent and the
Senior Lenders shall be entitled to manage and supervise their loans to Borrower
in accordance with applicable law and their usual practices, modified from time
to time as deemed appropriate under the circumstances, without regard to the
existence of any rights that any Noteholder may now or hereafter have in or to
any of the assets of Borrower, and that Agent and the Senior Lenders shall have
no liability to the Noteholders for, and waive any claim which the Noteholders
may now or hereafter have against, the Agent or any Senior Lender arising out of
any and all actions which the Agent or any Senior Lender, in good faith, takes
or omits to take with respect to the Credit Agreement or any other agreement
related thereto or to the collection of the Senior Debt or the valuation, use,
protection or release of any security for the Senior Debt.
13. INVALIDATED PAYMENTS. To the extent that the Senior Lenders receive
payments on, or proceeds of collateral for, the Senior Debt which are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law, or equitable cause, then, to
the extent of such payment or proceeds received, the Senior Debt, or part
thereof, intended to be satisfied shall be revived and continue in full force
and effect as if such payments or proceeds had not been received by the Senior
Lenders.
14. BANKRUPTCY ISSUES. Each of the Noteholders agrees that the Senior
Lenders, or any one of them may consent to the use of cash collateral or provide
financing to the Borrower on such terms and conditions and in such amounts as
the Senior Lenders, in their sole discretion, may decide and that, in connection
with such cash collateral usage or such financing, the Borrower (or a trustee
appointed for the estate of Borrower) may grant to the Agent or the Senior
Lenders liens and security interests upon all assets of the Borrower, which
liens and security interests (i) shall secure payment of all Senior Debt
(whether such Senior Debt arose prior to the
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filing of the petition for relief or arise thereafter); and (ii) shall be
superior in priority to the liens and security interests, if any, held by the
Noteholders on the assets of Borrower. All allocations of payments between the
Senior Lenders and the Noteholders shall, subject to any court order, continue
to be made after the filing of a petition under the Bankruptcy Code on the same
basis that the payments were to be allocated prior to the date of such filing.
Each of the Noteholders agrees that it will not object to or oppose a sale or
other disposition of any assets securing the Senior Debt (or any portion
thereof) free and clear of security interests, liens or other claims of the
Noteholders, if any, under Section 363 of the Bankruptcy Code or any other
provision of the Bankruptcy Code if the Senior Lenders have consented to such
sale or disposition of such assets. In the event that the Noteholders have or at
any time acquire any security for the Subordinated Debt, each of the Noteholders
agrees not to assert any right it may have to "adequate protection" of its
interest in such security in any bankruptcy proceeding and agrees that it will
not seek to have the automatic stay lifted with respect to such security,
without the prior written consent of the Senior Lenders. Each of the Noteholders
waives any claim it may now or hereafter have arising out of the Senior Lender's
election, in any proceeding instituted under Chapter 11 of the Bankruptcy Code,
of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or any
borrowing or grant of a security interest under Section 364 of the Bankruptcy
Code by Borrower, as debtor in possession. Each of the Noteholders agrees not to
initiate or prosecute or encourage any other person to initiate or prosecute any
claim, action or other proceeding (i) challenging the enforceability of any
Senior Lender's claim, (ii) challenging the enforceability of any liens or
security interests in assets securing the Senior Debt or (iii) asserting any
claims which the Borrower may hold with respect to the Lender.
15. AGENT'S AND SENIOR LENDERS' WAIVERS. No waiver shall be deemed to
be made by the Agent or any Senior Lender of any of the Agent's or the Senior
Lenders' rights hereunder, unless the same shall be in writing signed on behalf
of the Agent or the Senior Lenders, as applicable, and each waiver, if any,
shall be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the Agent or any Senior Lender or the obligations
of the Noteholders to the Agent and the Senior Lenders in any other respect at
any other time.
16. INFORMATION CONCERNING FINANCIAL CONDITION OF BORROWER. The
Noteholders hereby assume responsibility for keeping informed of the financial
condition of Borrower, any and all endorsers and any and all guarantors of the
Senior Debt and of all other circumstances bearing upon the risk of nonpayment
of the Senior Debt and/or Subordinated Debt that diligent inquiry would reveal,
and the Noteholders hereby agree that neither the Agent nor any Senior Lender
shall have any duty to advise the Noteholders of information known to the Agent
or any Senior Lender regarding such condition or any such circumstances. The
Noteholders hereby agree that all payments received by any Senior Lender may be
applied, reversed, and reapplied, in whole or in part, to any portion of the
Senior Debt, as the Senior Lenders, in their sole discretion, deem appropriate
and assent to any extension or postponement of the time of payment of the Senior
Debt or to any other indulgence with respect thereto, to any substitution,
exchange or release of collateral which may at any time secure the Senior Debt
and to the addition or release of any other party or person primarily or
secondarily liable therefor.
17. CONSENT TO JURISDICTION; WAIVERS. THE NOTEHOLDERS CONSENT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN COOK COUNTY, ILLINOIS,
AND WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENT THAT ALL
SUCH SERVICE OF PROCESS BE
108
<PAGE> 116
MADE BY REGISTERED MAIL DIRECTED TO THE NOTEHOLDERS AT THE ADDRESS STATED BELOW
AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED THREE (3) DAYS AFTER THE
SAME SHALL HAVE BEEN POSTED AS AFORESAID. THE NOTEHOLDERS WAIVE ANY OBJECTION
BASED UPON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. NOTHING IN THIS SECTION 17
SHALL AFFECT THE RIGHT OF THE AGENT OR ANY SENIOR LENDER TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE AGENT OR ANY
SENIOR LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST THE NOTEHOLDERS OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
18. NOTICES. All notices and other communications provided to any party
hereto shall be in writing or by facsimile and addressed or delivered to such
party at its address set forth below or at such other address as may be
designated by such party in a notice to the other party. Any notice, if mailed
and property addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted. The addresses are as follows:
(i) If to the Agent or any Senior Lender at:
Bank One, NA
1 Bank One Plaza
Chicago, IL 60670
Attn: Chris Flynn
Telecopy: (312) 732-1117
(ii) If to any Noteholder at:
c/o U.S. Home Corporation
10707 Clay Road
Houston, TX 77041
Attn: Thomas A. Napoli
Telecopy: (713) 877-2451
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<PAGE> 117
19. GOVERNING LAW. This Agreement has been delivered and accepted at
and shall be deemed to have been made at Chicago, Illinois, and shall be
interpreted, and the rights and obligations of the parties hereto determined, in
accordance with the laws and decisions of the State of Illinois, shall be
immediately binding upon the Noteholders and their successors and assigns, and
shall inure to the benefit of the successors and assigns of the Agent and the
Senior Lenders.
20. SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
21. SECTION TITLES. The section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
22. AUTHORITY. The signatories to this Agreement on behalf of the
Noteholders hereby certify that they have all necessary authority to grant the
subordination evidenced hereby and execute this Agreement on behalf of the
Noteholders.
23. FULL AGREEMENT. This Agreement constitutes the complete agreement
between the parties with respect to the subject matter hereof. Any document,
instrument or agreement executed by the parties hereto with respect to the
financing which is the subject of this Agreement predating this Agreement shall
be merged with and into and superseded by this Agreement.
110
<PAGE> 118
IN WITNESS WHEREOF, this Subordination Agreement has been signed as of
February 14, 2000.
NOTEHOLDERS:
U.S. HOME MORTGAGE CORPORATION
FIDELITY GUARANTY AND ACCEPTANCE
CORPORATION
U.S. HOME ACCEPTANCE CORPORATION
U.S. INSURORS, INC.
SAN FELIPE INDEMNITY CO., LTD.
U.S.H. INDEMNITY CO., LTD.
TEXAS-WIDE GENERAL AGENCY, INC.
HOMETRUST INSURANCE COMPANY
USH FUNDING CORP.
U.S. HOME INSURANCE AGENCY, INC.
EDGEWATER REINSURANCE, LTD.
By:
---------------------------------
Name: Thomas A. Napoli
Title: Vice President
Acknowledged and accepted in
Chicago, Illinois
February 14, 2000
Bank One, NA,
as Agent
By:
------------------------------------
Name:
Title:
111
<PAGE> 119
EXHIBIT J
CERTIFICATE
I, ____________________________, ______________ Vice President
of U.S. Home Corporation, execute and deliver this certificate pursuant to
Section 5.2 of the Fourth Amended and Restated Credit Agreement ("Credit
Agreement") dated as of February __, 2000, with Bank One, NA, as Agent, and the
Lenders that are parties thereto. Capitalized terms used in this certificate and
not defined herein have the meanings provided therefor in the Credit Agreement.
1. As of the date hereof, to the best of my knowledge, there
exists no Default or Unmatured Default.
2. To the best of my knowledge, the representations and
warranties contained in Article VI of the Credit Agreement are true and correct
in all material respects as of the date hereof, except to the extent that any
such representation or warranty is stated to relate solely to an earlier date,
in which case such representation or warranty is true and correct in all
material respects on and as of such earlier date and except for
_________________________.
3. Borrower hereby requests [a Eurodollar Advance in the
amount of $_________________ on ____________________ for a _______ month
Interest Period and/or a Floating Rate Advance in the amount of
$__________________ on ____________________ and/or a Swing Line Loan in the
amount of $_____________________ on __________________ and/or a Facility Letter
of Credit in the amount of $_________________ on ________________________].
4. Attached hereto is the Borrowing Base Certificate as of the
most recent Inventory Valuation Date, and I hereby certify that the aggregate
amount of the Advances and Facility Letters of Credit requested under this
certificate does not exceed the amount available for borrowing as shown on such
Borrowing Base Certificate.
----------------------------
Date: ______________________
112
<PAGE> 120
BORROWING BASE
DETERMINED AS OF
___________________, 200_
<TABLE>
<CAPTION>
Borrowing Base
- --------------
<S> <C> <C>
(i) Receivables $ $
(ii) Housing Units under
Contract $
x 80%
-----
$ $
(iii) Inventory Housing
Units $
x 70%
$ $
(iv) Lesser of (a) the sum
of (1) Finished Lots $
x 70%
-----
$
PLUS
(2) Land under Development $
x 50%
-----
$
PLUS
(3) Entitled Land $
x 30%
-----
$
$ *
OR
(b) Total Senior Loan
Commitments $
x 40%
-----
$ * $
------------
$
</TABLE>
- ---------------------------
* The lesser of (a) and (b) of clause (iv) is to be included in the Borrowing
Base.
113
<PAGE> 121
Less Consolidated Senior
Debt Borrowings (itemize)
Senior Debt Securities $
Outstanding Advances
under Credit Agreement
Outstanding Facility
Letters of Credit
[other] $
---------- -----------------
Amount by which Borrowing
Base exceeds Consolidated
Senior Debt Borrowings $
Aggregate Available Credit
Aggregate Commitment $360,000,000**
Less Outstanding Advances
and Facility Letters
of Credit $
-------------
Amount Available for
Borrowing $ ***
-------------
-------------
- ----------------------------
**This amount is to be decreased or increased to the extent that the Aggregate
Commitment is decreased or increased pursuant to the Credit Agreement.
***This amount is the lesser of (a) the amount determined pursuant to the
foregoing calculation (i.e., Borrowing Base, minus Consolidated Senior Debt
Borrowings) and (b) Aggregate Available Credit.
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<PAGE> 122
EXHIBIT "K"
COMPLIANCE CERTIFICATE
To: The Lender parties to the
Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Fourth Amended and Restated Credit Agreement dated as of February __, 2000 (as
amended, modified, renewed or extended from time to time, the "Agreement") among
U.S. Home Corporation, and the Lenders party thereto and Bank One, NA, as Agent
for the Lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ___________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing compliance with certain covenants of the Agreement, all
of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
115
<PAGE> 123
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ___ day of
____________, 200_.
116
<PAGE> 124
EXHIBIT "L"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
______________________ (the "Assignor") and ____________________ (the
"Assignee") is dated as of _____________, ___. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Fourth Amended
and Restated Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after a
Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to the Agent. Such Notice of Assignment must include any
consents required to be delivered to the Agent under Section 15.3.1 of the
Credit Agreement. In no event will the Effective Date occur if the payments
required to be made by the Assignee to the Assignor on the Effective Date under
Sections 4 and 5 hereof are not made on the proposed Effective Date. The
Assignor will notify the Assignee of the proposed Effective Date no later than
the Business Day prior to the proposed Effective Date. As of the Effective Date,
(i) the Assignee shall have the rights and obligations of a Lender under the
Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (ii) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Floating Rate Loans
assigned to the Assignee hereunder and (ii) with respect to each Eurodollar Loan
made by the Assignor and assigned to the Assignee hereunder
117
<PAGE> 125
which is outstanding on the Effective Date, (a) on the last day of the Interest
Period therefor or (b) on such earlier date agreed to by the Assignor and the
Assignee or (c) on the date on which any such Eurodollar Loan becomes due (by
acceleration or otherwise)(the date as described in the foregoing clauses (a),
(b) or (c) being hereinafter referred to as the "Payment Date"), the Assignee
shall pay the Assignor an amount equal to the principal amount of the portion of
such Eurodollar Loan assigned to the Assignee which is outstanding on the
Payment Date. If the Assignor and the Assignee agree that the Payment Date for
such Eurodollar Loan shall be the Effective Date, they shall agree to the
interest rate applicable to the portion of such Loan assigned hereunder for the
period from the Effective Date to the end of the existing Interest Period
applicable to such Eurodollar Loan (the "Agreed Interest Rate") and any interest
received by the Assignee in excess of the Agreed Interest Rate shall be remitted
to the Assignor. In the event interest for the period from the Effective Date to
but not including the Payment Date is not paid by the Borrower with respect to
any Eurodollar Loan sold by the Assignor to the Assignee hereunder, the Assignee
shall pay to the Assignor interest for such period on the portion of such
Eurodollar Loan sold by the Assignor to the Assignee hereunder at the applicable
rate provided by the Credit Agreement. In the event a prepayment of any
Eurodollar Loan which is existing on the Payment Date and assigned by the
Assignor to the Assignee hereunder occurs after the Payment Date but before the
end of the Interest Period applicable to such Eurodollar Loan, the Assignee
shall remit to the Assignor the excess of the prepayment penalty paid with
respect to the portion of such Eurodollar Loan assigned to the Assignee
hereunder over the amount which would have been paid if such prepayment penalty
was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Agent with respect to Eurodollar Loans prior to the Payment Date and (ii) any
amounts of interest on Loans and fees received from the Agent which relate to
the portion of the Loans assigned to the Assignee hereunder for periods prior to
the Effective Date, in the case of Floating Rate Loans or fees, or the Payment
Date, in the case of Eurodollar Loans, and not previously paid by the Assignee
to the Assignor.]* In the event that either party hereto receives any payment to
which the other party hereto is entitled under this Assignment Agreement, then
the party receiving such amount shall promptly remit it to the other party
hereto.
*Each Assignor may insert its standard payment provisions in lieu of the payment
terms included in this Exhibit.
5. FEES PAYABLE BY THE ASSIGNEE. [The Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or [commitment or
Facility Letter of Credit] fees is made under the Credit Agreement with respect
to the amounts assigned to the Assignee hereunder (other than a payment of
interest or [commitment or Facility Letter of Credit] fees for the period prior
to the Effective Date or, in the case of Eurodollar Loans, the Payment Date,
which the Assignee is obligated to deliver to the Assignor pursuant to Section 4
hereof). The amount of such fee shall be the difference between (i) the interest
or fee, as applicable, paid with respect to the amounts assigned to the Assignee
hereunder and (ii) the interest or fee, as applicable, which would have been
paid with respect to the amounts assigned to the Assignee hereunder if each
interest rate was of 1% less than the interest rate paid by the Borrower or if
the commitment fee was of 1% less than the commitment [or Facility Letter of
Credit] fee paid by the Borrower, as applicable. In addition, the Assignee
agrees to pay % of the recordation fee required to be paid to the Agent in
connection with this Assignment Agreement.]**
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<PAGE> 126
**The parties may substitute other terms with respect to fees.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any Guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any Guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower or any Guarantor, (vi) any mistake,
error of judgment, or action taken or omitted to be taken in connection with the
Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
[and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying that the Assignee is entitled to receive payments under
the Loan Documents without deduction or withholding of any United States federal
income taxes].***
***To be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any
119
<PAGE> 127
manner from the Assignee's non-performance of the obligations assumed under this
Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 14.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under [Sections 4, 5 and 8] hereof.
10. CHANGES IN AGGREGATE COMMITMENT. If any reduction in or increase of
the Aggregate Commitment occurs between the date of this Assignment Agreement
and the Effective Date, the percentage interest specified in Item 3 of Schedule
1 shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced or increased Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
-------------------------------------
Title:
----------------------------------
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
----------------------------------
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<PAGE> 128
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: _________, 19
3. Amounts (As of Date of Item 2 above):
a. Total of Commitment
under Credit
Agreement
b. Assignee's Percentage
purchased under the
Assignment
Agreement*
c. Amount of Assigned Share
purchased under the
the Assignment
Agreement
4. Assignee's Aggregate
Commitment Amount
Purchased Hereunder: $__________
5. Proposed Effective Date:
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
----------------------- -----------------------
Title: Title:
-------------------- --------------------
* Percentage taken to 10 decimal places
121
<PAGE> 129
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
122
<PAGE> 130
EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
_________________, 19
To: [NAME OF BORROWER]*
[NAME OF AGENT]
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to ****[the Borrower and]**** the Agent pursuant to Section 15.3.2 of
the Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of ______________, 19__ (the "Assignment"),
pursuant to which, among other things, the Assignor has sold, assigned,
delegated and transferred to the Assignee, and the Assignee has purchased,
accepted and assumed from the Assignor the percentage interest specified in Item
3 of Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement relating to the facilities listed in Item 3 of Schedule 1. The
Effective Date of the Assignment shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period as agreed to
by the Agent) after this Notice of Assignment and any consents and fees required
by Sections 15.3.1 and 15.3.2 of the Credit Agreement have been delivered to the
Agent, provided that the Effective Date shall not occur if any condition
precedent agreed to by the Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrower
and the Agent notice of the assignment and delegation referred to herein. The
Assignor will confer with the Agent before the date specified in Item 5 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment Agreement does
not become effective on
123
<PAGE> 131
any proposed Effective Date as a result of the failure to satisfy the conditions
precedent agreed to by the Assignor and the Assignee. At the request of the
Agent, the Assignor will give the Agent written confirmation of the satisfaction
of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $4,000 required by Section
15.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Agent prepare and request
the Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of
the funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that its
rights, benefits, and interests in and under the Loan Documents will not be
"plan assets" under ERISA.
9. The Assignee authorizes the Agent to act as its Agent under
the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
----------------------- -----------------------
Title: Title:
-------------------- --------------------
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT] BY [NAME OF BORROWER]
By: By:
----------------------- -----------------------
Title: Title:
-------------------- --------------------
[Attach photocopy of Schedule 1 to Assignment]
124
<PAGE> 132
SCHEDULE 1-A
GUARANTORS
Brush Masters, Inc.
Canterbury Corporation
Countryplace Golf Course, Inc.
E.M.J.V. Corp.
Homecraft Corporation
Imperial Homes Corporation
Lundgren Bros. Construction, Inc.
Mid-County Utilities, Inc.
Oceanpointe Development Corporation
Orrin Thompson Construction Company
Orrin Thompson Homes Corp.
Paparone Construction Company
Prairie Lake Corporation
Rivenhome Corporation
Rutenberg Homes, Inc. (Texas)
Rutenberg Homes, inc. (Florida)
Stoney Corporation
Stoneybrook Golf Club of Ft. Myers, Inc.
USH Acquisition Corp.
USH Equity Corporation
USH Holding, Inc.
USH Millenium Ventures Corp.
USH/MJR, Inc.
USH (West Lake), Inc.
USH Woodbridge, Inc.
U.S. Home Corporation of New York
U.S. Home of Arizona Construction Co.
U.S. Home of Colorado Real Estate, Inc.
U.S. Home Realty Corporation
U.S. Home Realty, Inc. (Maryland)
U.S. Home Realty, Inc. (Texas)
U.S. Home and Development Corporation
U.S.H. Corporation of New York
U.S.H. Los Prados, Inc.
Weststone Corporation
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<PAGE> 133
SCHEDULE 1-B
NON-BORROWING SUBSIDIARIES
U.S. Home Mortgage Corporation
Fidelity Guaranty and Acceptance Corporation
U.S. Home Acceptance Corporation
U.S. Insurors, Inc.
San Felipe Indemnity Co., Ltd.
U.S.H. Indemnity Co., Ltd.
Texas-Wide General Agency, Inc.
HomeTrust Insurance Company
USH Funding Corp.
U.S. Home Insurance Agency, Inc.
Edgewater Reinsurance, Ltd.
126
<PAGE> 134
SCHEDULE 6.3
REQUIRED CONSENTS
None.
127
<PAGE> 135
SCHEDULE 6.7
LITIGATION AND CONTINGENT OBLIGATIONS
None.
128
<PAGE> 1
EXHIBIT 10.11
Effective October 15, 1999
U.S. HOME CORPORATION
THIRD AMENDED AND RESTATED
CORPORATE OFFICERS AND PRESIDENTS OF OPERATIONS
RESTRICTED STOCK PLAN
1. PURPOSE.
The purpose of the U.S. Home Corporation Third Amended and Restated
Corporate Officers and Presidents of Operations Restricted Stock Plan (the
"Plan") is to create incentives for the corporate officers and presidents of
operations of U.S. Home Corporation (the "Company") to provide services to the
Company over a long period of time and to enhance the level of performance of
the Company by awarding such employees shares of Stock (as defined herein)
subject to certain vesting requirements.
2. ADMINISTRATION.
(a) A committee (the "Committee"), which shall initially be the
Compensation and Stock Option Committee of the board of directors of the Company
(the "Board"), and which will be comprised of at least three members of the
Board, all of whom are "disinterested persons" (as defined below), will (i)
administer the Plan, (ii) establish, subject to the provisions of the Plan, such
rules and regulations as it may deem appropriate for the proper administration
of the Plan and (iii) make such determinations under, and such interpretations
of, and take such steps in connection with, the Plan or the Stock issued
thereunder as it may deem necessary or advisable. The members of the Committee
may be appointed from time to time by the Board and serve at the pleasure of the
Board. The Committee will hereinafter be referred to as the "Administrator."
(b) For the purposes of this Section 2, a "disinterested person" is a
person who, on a given date, is disinterested within the meaning of Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
3. STOCK.
The stock which is the subject of the Plan will be the shares of common
stock of the Company, $.01 par value per share (the "Stock"), whether authorized
and unissued or treasury stock. The total number of shares of Stock which may be
issued under the Plan will not exceed, in the aggregate, 250,000.
4. AWARD OF STOCK.
(a) All of the corporate officers and presidents of operations of the
Company listed on Schedule A attached hereto (each an "Employee" and
collectively, "Employees"), shall be eligible to receive Stock in accordance
with the terms hereof.
<PAGE> 2
(b) In consideration of future services to be provided by each Employee to
the Company, each Employee shall be awarded, on a one-time basis, the number of
shares of Stock, subject to the restrictions contained herein, determined by
dividing $200,000 by the average closing price of the Stock on the New York
Stock Exchange (the "NYSE") for the 10 consecutive trading days immediately
following the date on which the Company releases its financial results for the
fiscal year ending December 31, 1994; provided that no fractional shares of
Stock shall be issued under the Plan.
(c) The closing price of the Stock, as of any particular day, will be as
reported in The Wall Street Journal; provided, however, that if the Stock is not
listed on the NYSE on any applicable day, the closing price for such day will be
not less than the fair market value of the Stock on such day, as determined by
the Administrator based on such empirical evidence as it deems to be appropriate
under the circumstances.
(d) The Administrator shall have the right pursuant to the terms hereof to
award Stock to any individual who becomes a corporate officer or president of
operations of the Company after the effective date of the Plan and prior to the
initial Vesting Date (as defined herein). The Administrator shall make such
award substantially in accordance with the terms of the Plan, including the
vesting requirements contained in Section 5 hereof, but shall be permitted to
award a smaller number of shares of Stock based on the date on which the
individual commences employment as a corporate officer or president of
operations of the Company.
5. VESTING
(a) On each Vesting Date, unless all shares of Stock awarded to each
Employee shall have previously vested with each Employee and subject to the
forfeiture provisions contained herein, a percentage of the shares of Stock
awarded hereunder to each Employee shall vest with each Employee such that the
cumulative percentage of total shares of Stock vested with each Employee shall
be the greatest of the applicable percentages set forth below:
(i) (A) 20% as of the Vesting Date in the year 2000;
(B) 40% as of the Vesting Date in the year 2001;
(C) 60% as of the Vesting Date in the year 2002;
(D) 80% as of the Vesting Date in the year 2003;
(E) 100% as of the Vesting Date in the year 2004;
(ii) If, on a Vesting Date, the Return on Assets Improvement (as defined
herein) is:
(A) greater than 1.05 and less than or equal to 1.10, then 40%;
(B) greater than 1.10 and less than or equal to 1.15, then 60%;
(C) greater than 1.15 and less than or equal to 1.20, then 80%;
(D) greater than 1.20, then 100%;
(iii) If the Company achieves its Closing Goal (as defined herein) and the
Return on Sales Improvement (as defined herein) is:
2
<PAGE> 3
(A) equal to or greater than 1.00 and less than 1.05, then 75%;
(B) greater than 1.05, then 100%;
(iv) If, for the fiscal year 1999 or fiscal year 2000, the Company's
Pre-tax Income (as defined herein) is $111.5 million or greater and (x) the
Return on Sales for such fiscal year divided by (y) the Return on Sales for the
fiscal year ended December 31, 1997, adjusted for any Significant Acquisition,
rounded to the nearer hundredth, is equal to or greater than 1.05, then 100%;
provided, however, that no Employee shall be required to forfeit any shares of
Stock previously vested hereunder.
For the purposes hereof:
"Return on Assets Improvement" means (x) the sum of the Return on Assets
for the two fiscal years of the Company immediately prior to the applicable
Vesting Date divided by two, and the result divided by (y) the Return on Assets
for the fiscal year ended December 31, 1994, rounded to the nearer hundredth.
"Return on Assets" means (x) the amount contained in the Company's "income
(loss) before income tax" line-item for the applicable year of the Company as
reported in the consolidated statements of operations set forth in the audited
financial statements for the Company for such fiscal year, divided by (y) the
Average Total Assets for such year.
"Average Total Assets" means an amount equal to (x) (1) total housing
assets at the beginning of the applicable fiscal year of the Company (as
reported in the consolidated balance sheet set forth in the audited financial
statements for the Company for the prior year), plus (2) total housing assets at
the end of such fiscal year (as reported in the consolidated balance sheet set
forth in the audited financial statements for the Company for such fiscal year),
divided by (y) two.
"Closing Goal" means closing 10,000 housing units for a fiscal year ending
on or before December 31, 2000; provided, however, that the Closing Goal shall
be adjusted upward by the Administrator to account for an increase in the number
of closings that are the result of a Significant Acquisition.
"Significant Acquisition" means the acquisition of a home building company
whose operating revenue for the 12 months preceding the month in which the
acquisition is closed was equal to or greater than 25% of the Company's
operating revenue for such 12-month period.
"Return on Sales Improvement" means (x) the Return on Sales for the fiscal
year in which the Closing Goal is achieved, divided by (y) the Return on Sales
for the fiscal year ended December 31, 1997, adjusted for any Significant
Acquisition, rounded to the nearer hundredth.
3
<PAGE> 4
"Return on Sales" means (x) the amount contained in the Company's "income
(loss) before income tax" line-item for the applicable year of the Company as
reported in the consolidated statements of operations set forth in the audited
financial statements for the Company for such fiscal year, divided by (y) the
amount contained in the Company's "housing operating revenues" line-item for the
applicable year of the Company as reported in the consolidated statements of
operations set forth in the audited financial statements for the Company for
such fiscal year. If a Significant Acquisition occurs, the income and revenues
of the Significant Acquisition during the 12-month period preceding the
acquisition shall be combined with the income and revenues of the Company for
the fiscal year ended December 31, 1997 to determine the adjusted Return on
Sales for the fiscal year ended December 31, 1997.
"Pre-tax Income" means the amount contained in the Company's "income (loss)
before income tax" line-item for the applicable year of the Company as reported
in the consolidated statements of operations set forth in the audited financial
statements for the Company for such fiscal year.
(b) In the event an Employee is not employed by the Company on or prior to
December 31 of any year which is immediately prior to any Vesting Date, due to
voluntary termination of employment by the Employee or termination for Cause (as
defined herein), all of the shares of Stock remaining to be vested with such
Employee hereunder and all rights arising from such shares of Stock shall be
forfeited by such Employee and returned to the Company.
(c) For purposes of the Plan, a voluntary termination by an Employee will
not be deemed to occur in the event such Employee is Constructively Terminated
(as defined herein).
(d) In the event an Employee is terminated without Cause prior to January
1, 2000, 20% of the shares of Stock awarded hereunder shall immediately vest
with such Employee and the remaining shares of Stock to be vested hereunder and
all rights arising from such shares of Stock shall be forfeited by such Employee
and returned to the Company.
(e) In the event there is a Change of Control (as defined herein), all
shares of Stock remaining to be vested with such Employee hereunder shall
immediately vest with such Employee. The Company shall immediately cause the
issuance to such Employee of appropriate stock certificates representing such
shares of Stock in such Employee's name in accordance with Section 6 hereof.
(f) In the event an Employee dies, is Permanently Disabled (as defined
herein), or retires (after not less than 20 years of employment by the Company),
the Administrator shall have the authority, in its sole discretion, to vest such
Employee (or such Employee's estate, if applicable) in as many shares of Stock
as the Administrator shall deem appropriate, based upon such Employee's prior
job performance.
4
<PAGE> 5
(g) For purposes of the Plan:
(i) "Base Salary" shall mean an amount equal to an Employee's maximum
annual base salary in effect at any time after the effective date of the Plan,
excluding any incentive compensation or bonus payable or paid to an Employee.
(ii) "Cause" means (1) an Employee's continuing willful failure to
perform his duties with respect to the Company (other than as a result of total
or partial incapacity due to physical or mental illness), (2) gross negligence
or malfeasance by an Employee in the performance of his duties with respect to
the Company, (3) an act or acts on an Employee's part constituting a felony
under the laws of the United States or any state thereof which results or was
intended to result directly or indirectly in gain or personal enrichment by such
Employee at the expense of the Company or (4) any other circumstances set forth
in an employment agreement between the Company and such Employee which would
constitute grounds for the Company to terminate the employment of such Employee
for cause (as defined in the applicable employment agreement).
(iii) "Change of Control" shall mean any of the following: (i) a report
on Schedule 13D is filed with the Securities and Exchange Commission pursuant to
Section 13(d) of the Exchange Act, disclosing that any person or group of
persons (within the meaning of Section 13(d) of the Exchange Act), other than
the Company (or one of its subsidiaries) or any employee benefit plan sponsored
by the Company (or one of its subsidiaries), is the beneficial owner (as such
term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of fifty percent (50%) or more of the combined voting power of the then
outstanding equity of the Company (as determined under paragraph (d) of Rule
13d-3 under the Exchange Act, in the case of rights to acquire the Stock, (ii)
any transaction or a series of related transactions (as a result of a tender
offer, merger, consolidation or otherwise whether or not the Company is the
continuing or surviving entity) that results in, or that is in connection with,
any person or group of persons (within the meaning of Section 13(d) of the
Exchange Act), other than the Company (or one of its subsidiaries) or any
employee benefit plan sponsored by the Company (or one of its subsidiaries),
acquiring beneficial ownership (as such term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of fifty percent (50%) or more of the
combined voting power of the then outstanding equity of the Company (as
determined under paragraph (d) of Rule 13d-3 under the Exchange Act, in the case
of rights to acquire the Stock) or of any person or group of persons (within the
meaning of Section 13(d) of the Exchange Act) that possesses beneficial
ownership (as such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of fifty percent (50%) or more of the combined voting
power of the then outstanding equity of the Company; (iii) the sale, lease,
exchange or other transfer of all or substantially all of the assets of the
Company to any person or group of persons (within the meaning of Section 13(d)
of the Exchange Act) in one transaction or a series of related transactions;
provided, that a transaction where the holders of all classes of the then
outstanding equity of the Company immediately prior to such transaction own,
directly or indirectly, fifty percent (50%) or more of the aggregate voting
power of all classes of equity of such person or group immediately after such
transaction will not be a Change of Control under this clause (iii); (iv) the
liquidation or dissolution of the Company; provided, that a liquidation or
dissolution of the Company which is part of a transaction or series of related
transactions that does not constitute a
5
<PAGE> 6
Change of Control under the "provided" clause of clause (iii) above will not
constitute a Change of Control under this clause (iv); or (v) a change in a
majority of the members of the Board of Directors of the Company within a
12-month period, unless the election or nomination for election by the Company's
stockholders of each new director during such 12-month period was approved by
the vote of two-thirds of the directors then still in office who were directors
at the beginning of such 12-month period.
(iv) "Constructively Terminated" means (1) a reduction in an amount
equal to or greater than 15 percent of an Employee's Base Salary, (2) a material
reduction in an Employee's job function, duties or responsibilities or (3) a
required relocation of an Employee of more than 50 miles from such Employee's
current job location; provided, however, that the employment with the Company or
its divisions or subsidiaries of a President of Operations will not be deemed to
be Constructively Terminated in the event he or she is required to be a Division
Chairman or Division President with the Company or its divisions or subsidiaries
and has job functions, duties or responsibilities of a Division Chairman or
Division President and/or is required to relocate in connection with such change
in position; provided, further, that the employment of an Employee will not be
deemed Constructively Terminated unless such Employee actually terminates his or
her employment with the Company within 60 days after the occurrence of an event
specified in clause (1), (2) or (3) above.
(v) "Permanently Disabled" means physical or mental incapacity of such
nature that an Employee is unable to engage in or perform the principal duties
of his customary employment or occupation on a continuing or sustained basis.
All determinations as to the date and extent of disability of any Employee shall
be made by the Administrator upon the basis of such evidence as it deems
necessary or desirable.
(vi) "Vesting Date" means the date each year, commencing in 2000, on
which the Company releases its financial results for the previous fiscal year.
6. STOCK CERTIFICATES.
(a) Each Employee shall receive a stock certificate reflecting the number
of shares of Stock awarded hereunder. Such certificate shall be registered in
the name of such Employee and shall bear the following legend:
"The securities (the "Shares") represented by this
stock certificate are restricted by the terms of
the U.S. Home Corporation Corporate Officers and
Presidents of Operations Restricted Stock Plan
("Restricted Stock Plan"), effective as of January
1, 1995, which contains provisions affecting the
rights and obligations of the holder of the Shares
and restrictions on the transfer of the Shares.
Any transfer of the Shares represented by this
stock certificate in violation of the Restricted
Stock Plan is null and void."
6
<PAGE> 7
(b) The Administrator may, in its sole discretion, require that the stock
certificates evidencing the shares of Stock be held in custody by the Company
until the restrictions thereon shall have lapsed, and that, as a condition of
receiving the shares of Stock, the Employee shall have delivered a stock power,
endorsed in blank, relating to the shares of Stock. If and to the extent any
shares of Stock vest with an Employee in accordance with terms hereof, stock
certificates for the appropriate number of unrestricted shares of Stock shall be
delivered promptly to the Employee. Shares of Common Stock will not be released
to an Employee unless and until the amount of federal, state or local taxes
required to be withheld has been paid or satisfied. Tax withholding liabilities
may be satisfied by the Employee relinquishing shares of Common Stock vested
pursuant to the Plan, valued at the market price of the Common Stock on the date
such shares of Common Stock are released to the Employee.
7. TERM AND EFFECTIVE DATE.
The Plan will become effective upon (i) approval by the Board and (ii)
approval by the affirmative vote of a majority of the shares of voting capital
stock of the Company present or represented and entitled to vote at the 1995
annual meeting of the Company's stockholders. Subject to Section 15 hereof, the
Plan shall terminate upon issuance and vesting of the Stock issuable pursuant to
the Plan.
8. TRANSFERABILITY.
Employees shall not be permitted to sell, transfer, pledge, assign or
otherwise encumber shares of Stock awarded hereunder prior to the vesting of
such shares of Stock. Upon vesting of such shares of Stock, an Employee will
only transfer such shares of Stock in compliance with applicable federal and
state securities laws. Employees who are affiliates of the Company may generally
dispose of their shares in accordance with Rule 144 promulgated under the
Securities Act of 1933, as amended.
9. RIGHTS AS A STOCKHOLDER.
Except as provided in Section 8 hereof or this Section 9, Employees shall
have, with respect to any shares of Stock remaining to be vested hereunder, all
of the rights of stockholders of the Company, including the right to vote such
shares of Stock and to receive any cash dividends. Stock dividends, if any,
issued with respect to such shares of Stock shall be subject to the same
restrictions and other terms and conditions hereunder that apply to such shares
of Stock.
10. INVESTMENT PURPOSE.
At the time of issuance of any shares of Stock, the Administrator may, if
it will deem it necessary or desirable for any reason, require an Employee to
represent in writing to the Company that (a) it is such Employee's then
intention to acquire the Stock for investment purposes and not with a view to
the distribution thereof and/or (b) upon acquisition of the Stock, the Employee
will not beneficially own in excess of 4.9 percent of the value of the equity
7
<PAGE> 8
securities (as defined in Rule 3a11-1 under the Exchange Act) of the Company;
provided that for purposes of this Section 10(b), all outstanding options and
convertible securities to acquire Stock shall be deemed to be exercised or
converted; provided, further, that this Section 10(b) shall be inoperative after
June 21, 1995.
11. RIGHT TO TERMINATE EMPLOYMENT.
Nothing contained herein will restrict the right of the Company to
terminate the employment of any Employee at any time.
12. FINALITY OF DETERMINATIONS.
Each determination, interpretation, or other action made or taken pursuant
to the provisions of the Plan by the Administrator will be final and be binding
and conclusive for all purposes.
13. SUBSIDIARY AND PARENT CORPORATIONS.
Unless the context requires otherwise, references under the Plan to the
Company will be deemed to include any subsidiary corporations and parent
corporations of the Company, as those terms are defined in Section 424 of the
Internal Revenue Code of 1986, as amended.
14. GOVERNING LAW.
The Plan will be governed by the laws of the State of Delaware.
15. AMENDMENT AND TERMINATION.
The Administrator may at any time terminate, amend or modify the Plan in
any respect it deems suitable; provided, however, that, solely with respect to
persons subject to Section 16 of the Exchange Act, no such action of the
Administrator, without the approval of the stockholders of the Company, may (i)
materially increase the benefits accruing to employees eligible to receive Stock
under the Plan, (ii) materially increase the total amount of Stock which may be
awarded under the Plan or (iii) materially modify the requirements for
participation in the Plan; provided, further, that no amendment, modification or
termination of the Plan may in any manner affect any Stock (whether vested or
not) theretofore awarded under the Plan without the consent of the Employee to
whom Stock has been awarded.
16. OVERRIDE.
(a) With respect to persons subject to Section 16 of the Exchange Act,
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
any provision of the Plan or action by the Administrator fails to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Administrator.
8
<PAGE> 9
(b) All transactions pursuant to terms of the Plan, including, without
limitation, awards and vesting of Stock, shall only be effective at such time as
counsel to the Company shall have determined that such transaction will not
violate federal or state securities or other laws. The Administrator may, in its
sole discretion, defer the effectiveness of such transaction to pursue whatever
actions may be required to ensure compliance with such federal or state
securities or other laws.
9
<PAGE> 10
SCHEDULE A
CORPORATE OFFICERS PRESIDENTS OF OPERATIONS
Robert J. Strudler Sam B. Crimaldi
Isaac Heimbinder James R. Petty
Gary L. Frueh Christopher B. Rediger
Craig M. Johnson Michael T. Richardson
Thomas A. Napoli Philip J. Walsh III
Chester P. Sadowski
Richard G. Slaughter
Kelly F. Somoza
10
<PAGE> 1
EXHIBIT 10.16
(9/13/99)
U.S. HOME CORPORATION
CORPORATE OFFICERS'(1)
INCENTIVE COMPENSATION PROGRAM
FOR THE INCENTIVE PERIOD
JANUARY 1, 2000 TO DECEMBER 31, 2000
Set forth below is an outline of the Corporate Officers' Incentive
Compensation Program for the incentive period January 1, 2000 to December 31,
2000 ("Incentive 2000").
Corporate Officers who are employed by the Corporation as of January 1,
2000 will be eligible to participate in the Corporate Officers' Incentive
Compensation Program for the period commencing January 1, 2000 and ending
December 31, 2000. Effective January 1, 2000, base salaries are established as
set forth in Exhibit A hereto.
Under this Program, an incentive compensation pool equal to the lesser of
$1,000,000 or 2% of the pre-tax profits of the Corporation earned in fiscal
2000, shall be established to be distributed to the Corporate Officers at the
sole discretion and upon approval of a majority of the non-management members of
the Compensation Committee and of the Board of Directors of the Corporation
based on its evaluation of the following factors:
1. The Board of Directors shall review the profit and loss of the Company for
the fiscal year ended December 31, 2000 as compared to the projected profit
and loss for the period January 1, 2000 through December 31, 2000 as set
forth in the 2000 Business Plan as presented to the Board of Directors.
2. The Board of Directors shall review the cash flow of the Company as
compared to the projected cash flow for the period January 1, 2000 through
December 31, 2000 as set forth in the 2000 Business Plan as presented to
the Board of Directors.
3. The Board of Directors shall review the overall performance of the Company
in comparison to competitive industry performance taking into
consideration, an analysis of rates of growth, return on equity and return
on sales.
4. The Board of Directors shall review incentive bonus payments by competitors
in relation to proposed payments to said officers to insure that they are
designed to retain and motivate executives.
5. All other actions by said Officers to maximize the value of shareholders'
equity.
- ---------------
(1) Excludes Chairman and President who are subject to Employment and
Consulting Agreements which govern payment of bonus (see Exhibit A).
<PAGE> 2
Corporate Officers' Incentive Compensation Program Page 2 of 3 pages
Upon the recommendation of the Chairman and President of the Company, the
Board of Directors shall determine, in its sole discretion, the amount each
respective Officer shall receive from the said incentive compensation pool,
provided that the maximum incentive compensation payable to any Senior Vice
President and any Vice President shall not exceed the percentage of their
respective base compensation set forth in Schedule I hereto.
To be entitled to receive a bonus, a Corporate Officer must remain in the
employ of the Company for the entire fiscal year.
Notwithstanding the foregoing, the Corporation shall have the right to
terminate employment of any Corporate Officer covered under this Program at
will, without notice, and without cause, at any time.
The total bonus earned pursuant to the incentive program set forth herein
shall be paid upon approval of the Board of Directors of the Company as follows:
A. 75% of the aggregate incentive bonus earned by the Corporate Officer shall
be paid in cash within 30 days following receipt of 2000 audited financial
statements.
B. The balance of the aggregate incentive bonus earned by the Corporate
Officer shall be paid as follows:
1. If the respective Corporate Officer shall own of record or
beneficially, as of the last trading day of December, 2000, shares of
common stock of the Corporation which shall have a market value on
such date equal to or in excess of his/her base salary as of such
date, the balance of such incentive bonus shall be paid in cash within
30 days following receipt of the 2000 audited financial statements.
2. If the respective Corporate Officer shall not own of record
beneficially, as of the last trading day of December, 2000, shares of
common stock of the Corporation which shall have a market value on
such date(1) equal to or in excess of his/her base salary as of such
date, the balance of such incentive bonus shall be paid in shares of
stock as set forth below:
25% of the aggregate incentive bonus earned by the Corporate Officer
shall be paid in shares of U.S. Home Corporation's common stock, with
each share valued at the closing price of said shares on the New York
Stock Exchange, as of the last trading day of December, 2000. Said
shares shall be held in escrow by the Company to be delivered to the
respective Corporate Officers as follows:
i) 1/2 of such shares shall be delivered to the Corporate Officer
within thirty (30) days following receipt of the 2000 audited
financial statements.
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(1) Shares earned as part of prior year bonus but not delivered shall be
included. Restricted shares not vested as of such date shall not be
included.
<PAGE> 3
Corporate Officers' Incentive Compensation Program Page 3 of 3 pages
ii) 1/2 of such shares shall be delivered to the Corporate Officer on
or prior to January 31, 2003. However, in order to receive such
shares, the Corporate Officer must remain in the employ of the
Corporation as of December 31, 2002.
Notwithstanding the foregoing, in the event that said Corporate Officer's
employment with the Corporation is terminated by the Corporation other than for
"Cause", all remaining shares not previously delivered to the Corporate Officer
shall be delivered to said Corporate Officer within thirty (30) days following
termination. For purposes of this Program, the term "Cause" shall mean (i) the
Officer's continuing, willful failure to perform his/her duties required of
his/her position (other than as a result of total or partial incapacity due to
physical or mental illness), (ii) gross negligence or malfeasance by the Officer
in the performance of his/her duties hereunder, (iii) an act or acts on the
Officer's part constituting a felony under the laws of the United States or any
state thereof which results or was intended to result directly or indirectly in
gain or personal enrichment by the Officer at the expense of the Company, or
(iv) breach of the provisions of Exhibit B hereto pertaining to confidentiality
and competitive activities, but shall not mean (A) the refusal to relocate to
another city more than 50 miles from the Officer's present place of business,
nor (B) a refusal to perform the duties required of his/her position as a result
of either a material change in the scope of his/her job responsibilities or a
reduction in base compensation.
The transfer of said shares by such Corporate Officer shall be required to
conform to all applicable laws and regulations pertaining thereto.
Upon a Change in Control (as defined in the Key Employee Severance Pay
Plan) and the Corporate Officer's involuntary termination, other than for cause,
prior to the end of the Incentive Year, in addition to any amounts payable under
any other compensation plan, the Corporate Officer will be paid an amount equal
to the maximum incentive compensation which could be earned pro-rated for the
number of full months employed during the Incentive Year.
<PAGE> 4
(9/14/99)
EXHIBIT A
Name and Title of Employee
- ---------------------------------------------------------------------
Gary L. Frueh
Sr. Vice President - Tax and Audit
Craig Johnson
Sr. Vice President - Community Development
Thomas A. Napoli
Vice President - Corporate Finance and Treasurer
Chester P. Sadowski
Sr. Vice President - Controller and Chief Accounting Officer
Richard G. Slaughter
Vice President - Planning and Secretary
Kelly Somoza
Vice President - Investor Relations
Frank Matthews
Vice President - Human Resources
<PAGE> 5
EXHIBIT B
A. Confidentiality. The Officer acknowledges that he has acquired and will
acquire confidential information respecting the business of the Company.
Accordingly, the Officer agrees that, without the written consent of the
Company as authorized by its Board of Directors, he will not, at any time,
willfully disclose any such confidential information to any unauthorized
third party with an intent that such disclosure will result in financial
benefit to the Officer or to any person other than the Company. For this
purpose, information shall be considered confidential only if such
information is uniquely proprietary to the Company and has not been made
publicly available prior to its disclosure by the Officer.
B. Competitive Activity. Until the end of his/her employment, the Officer
shall devote full business time to business of the Corporation and shall
not, without the consent of the Board of Directors of the Company, directly
or indirectly, knowingly engage or be interested in (as owner, partner,
shareholder, employee, director, officer, agent, consultant or otherwise),
with or without compensation, any business which is in competition with any
line of business being actively conducted by the Company or any of its
affiliates or subsidiaries during his/her employment period. Nothing
herein, however, shall prohibit the Officer from acquiring or holding not
more than one percent of any class of publicly traded securities of any
such business.
<PAGE> 6
(9/14/99)
SCHEDULE I
<TABLE>
<CAPTION>
Name and Title of Employee Maximum 2000 Bonus (Percentage Proposed 2000 Percentage of 2000 Base
of Base Compensation) Bonus Compensation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Gary L. Frueh
Sr. Vice President - Tax and Audit
Craig Johnson
Sr. Vice President - Community Development
Thomas A. Napoli
Vice President - Corporate Finance and
Treasurer
Chester P. Sadowski
Sr. Vice President - Controller and
Chief Accounting Officer
Richard G. Slaughter
Vice President - Planning and Secretary
Kelly Somoza
Vice President - Investor Relations
Frank Matthews
Vice President - Human Resources
---------
Total: *
=========
</TABLE>
* Maximum bonus pool equals $1,000,000.
<PAGE> 1
EXHIBIT 10.21
FIRST AMENDMENT TO THE
SECOND AMENDED AND RESTATED
EMPLOYMENT AND CONSULTING AGREEMENT
WHEREAS, U.S. Home Corporation (the "Company") and Robert J.
Strudler (the "Executive") have entered into the Second Amended and Restated
Employment and Consulting Agreement (the "Agreement"), dated as of February 9,
1999; and
WHEREAS, Section 5(d) of the Agreement provides for the making of
certain payments to the Executive in the event a Change in Control Event (as
defined therein) occurs, and provides for certain limitations on such payments;
and
WHEREAS, on February 9, 2000, the Board of Directors of the
Company (the "Board") resolved that the Agreement should be amended to remove
such limitations and to provide for an additional payment to the Executive under
certain circumstances, and the Executive agreed to such amendment on such date;
and
WHEREAS, Section 3(a) of the Agreement provides for a deferral of
a portion of the Executive's compensation under certain circumstances; and
WHEREAS, the Board had previously resolved that, for purposes of
determining whether the Executive's "applicable employee remuneration" for
calendar year 2000 exceeds the maximum amount deductible by the Company for such
year, the amount includible in his income by reason of the Company's attainment
of financial goals which required the removal of the restrictions placed on the
Company's common stock he was awarded under the Third Amended and Restated
Corporate Officers and Presidents of Operation Restricted Stock Plan shall be
ignored; and
WHEREAS, Section 7(c) of the Agreement permits an amendment by
written agreement of the parties.
NOW, THEREFORE, for good and valuable consideration, the Company
and the Executive agree that the Agreement shall be amended as set forth below.
<PAGE> 2
FIRST
The second sentence of Section 3(a) of the Agreement is hereby
amended in its entirety, to read as follows:
Notwithstanding the foregoing, if the Executive's applicable
employee remuneration (as defined in Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code")) for any
taxable year would exceed the higher of $1 million or the maximum
amount deductible by the Company under Section 162(m) for such
taxable year, the amount otherwise payable shall be reduced to the
higher of $1 million or the maximum amount deductible under
Section 162(m) and the excess shall be deferred until the
expiration of the Employment Term and shall be payable in a cash
lump sum on April 16 of the first year of the Consultation Period;
provided, however, that any income that the Executive recognizes
in calendar year 2000 as a result of the vesting of otherwise
restricted shares under the Company's Third Amended and Restated
Corporate Officers and Presidents of Operations Restricted Stock
Plan by reason of the Company's attainment of financial goals
during calendar year 1999 shall not be included in the
determination of the amount deferred for either calendar year.
SECOND
Section 5(d) of the Agreement is hereby amended by the deletion of
the phrase "within the time period specified in subparagraph (iii) below" in the
ninth line thereof and the addition of the phrase "not later than 30 days after
he gives notice to the Company under this paragraph" in its place and stead.
THIRD
Section 5(d) of the Agreement is hereby amended by the deletion of
subparagraphs (ii) and (iii), by renumbering subparagraph (iv) as subparagraph
(iii), and by the addition of a new subparagraph (ii) to read as follows:
(ii) Notwithstanding anything herein to the contrary, if the
aggregate amounts payable pursuant to subparagraph (i) of this
paragraph (d) or under any other agreement, plan or arrangement
maintained by the Company (the "Change in Control Payments") are
or at any time becomes subject to the tax imposed by
<PAGE> 3
Section 4999 of the Code (the "Excise Tax"), the Company shall pay
to the Executive at the time specified below, an additional lump
sum cash amount (the "Gross-Up Payment") such that the net amount
retained by the Executive after deduction of any Excise Tax on the
Change in Control Payments and any federal, state and local income
tax and Excise Tax upon the payment provided by this subparagraph,
shall be equal to the Change in Control Payments. For purposes of
determining whether any of the Change in Control Payments will be
subject to the Excise Tax and the amount of such Excise Tax, (A)
any other payments or benefits received or to be received by the
Executive in connection with a Control Change shall be treated as
"parachute payments" within the meaning of Section 280G of the
Code, and all "excess parachute payments" within the meaning of
such Section 280G shall be treated as subject to the Excise Tax,
unless in the opinion of tax counsel selected by the Company's
independent auditors and acceptable to the Executive, such other
payments or benefits (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or
in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G of the Code, and (B)
the value of any non-cash benefits or any deferred payment or
benefits shall be determined by such independent auditors in
accordance with the principles of Section 280G of the Code. For
purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates of taxation in
the state and locality of his residence on the date of his
termination of employment net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state
and local taxes. In the event that the Company furnishes the
Executive with a written opinion of its independent accountants
(reasonably satisfactory to the Executive) that the Excise Tax due
is subsequently determined to be less than the amount taken into
account hereunder at the time a Gross-Up Payment was made, the
Executive shall repay to the Company at the time that the amount
of such reduction in Excise Tax is finally determined, the portion
of the Gross-Up Payment attributable to such reduction plus
interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing,
if any portion of the Gross-Up Payment to be refunded to the
Company has been paid to any federal, state or local tax
authority, repayment thereof shall not be required until an actual
<PAGE> 4
refund or credit of such portion has been made to or obtained by
the Executive from such tax authority, and any interest payable to
the Company shall not exceed the interest received or credited to
the Executive by any such tax authority. The Executive shall be
fully indemnified by the Company for any out-of-pocket costs,
expenses or fees attributable to the filing of any refund or other
claim. Notwithstanding the foregoing, in the event the Executive
notifies the Company that the Excise Tax has been determined (by
the Executive's tax counsel or otherwise) to exceed the amount
taken into account hereunder at the time a Gross-Up Payment was
made (including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess Excise Tax (plus any interest payable with
respect to such excess) at the time that the amount of such excess
is finally determined. A Gross-Up Payment shall be paid to the
Executive not later than ten (10) business days following the
payment of any Change in Control Payments which are subject to
Section 4999 of the Code.
FOURTH
Except as set forth above, the Agreement shall remain in full
force and effect.
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have duly executed this
amendment as evidence of its adoption as of February 9, 2000.
By: /s/ Isaac Heimbinder
--------------------------------------------
Name: Isaac Heimbinder
Title: President, Co-Chief Executive Officer
and Chief Operating Officer
EXECUTIVE:
/s/ Robert J. Strudler
------------------------------------------------
Name: Robert J. Strudler
<PAGE> 1
EXHIBIT 10.23
FIRST AMENDMENT TO THE
SECOND AMENDED AND RESTATED
EMPLOYMENT AND CONSULTING AGREEMENT
WHEREAS, U.S. Home Corporation (the "Company") and Isaac
Heimbinder (the "Executive") have entered into the Second Amended and Restated
Employment and Consulting Agreement (the "Agreement"), dated as of February 9,
1999; and
WHEREAS, Section 5(d) of the Agreement provides for the making of
certain payments to the Executive in the event a Change in Control Event (as
defined therein) occurs, and provides for certain limitations on such payments;
and
WHEREAS, on February 9, 2000, the Board of Directors of the
Company (the "Board") resolved that the Agreement should be amended to remove
such limitations and to provide for an additional payment to the Executive under
certain circumstances, and the Executive agreed to such amendment on such date;
and
WHEREAS, Section 3(a) of the Agreement provides for a deferral of
a portion of the Executive's compensation under certain circumstances; and
WHEREAS, the Board had previously resolved that, for purposes of
determining whether the Executive's "applicable employee remuneration" for
calendar year 2000 exceeds the maximum amount deductible by the Company for such
year, the amount includible in his income by reason of the Company's attainment
of financial goals which required the removal of the restrictions placed on the
Company's common stock he was awarded under the Third Amended and Restated
Corporate Officers and Presidents of Operations Restricted Stock Plan shall be
ignored; and
WHEREAS, Section 7(c) of the Agreement permits an amendment by
written agreement of the parties.
NOW, THEREFORE, for good and valuable consideration, the Company
and the Executive agree that the Agreement shall be amended as set forth below.
<PAGE> 2
FIRST
The second sentence of Section 3(a) of the Agreement is hereby
amended in its entirety, to read as follows:
Notwithstanding the foregoing, if the Executive's applicable
employee remuneration (as defined in Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code")) for any
taxable year would exceed the higher of $1 million or the maximum
amount deductible by the Company under Section 162(m) for such
taxable year, the amount otherwise payable shall be reduced to the
higher of $1 million or the maximum amount deductible under
Section 162(m) and the excess shall be deferred until the
expiration of the Employment Term and shall be payable in a cash
lump sum on April 16 of the first year of the Consultation Period;
provided, however, that any income that the Executive recognizes
in calendar year 2000 as a result of the vesting of otherwise
restricted shares under the Company's Third Amended and Restated
Corporate Officers and Presidents of Operations Restricted Stock
Plan by reason of the Company's attainment of financial goals
during calendar year 1999 shall not be included in the
determination of the amount deferred for either calendar year.
SECOND
Section 5(d) of the Agreement is hereby amended by the deletion of
the phrase "within the time period specified in subparagraph (iii) below" in the
ninth line thereof and the addition of the phrase "not later than 30 days after
he gives notice to the Company under this paragraph" in its place and stead.
THIRD
Section 5(d) of the Agreement is hereby amended by the deletion of
subparagraphs (ii) and (iii), by renumbering subparagraph (iv) as subparagraph
(iii), and by the addition of a new subparagraph (ii) to read as follows:
(ii) Notwithstanding anything herein to the contrary, if the
aggregate amounts payable pursuant to subparagraph (i) of this
paragraph (d) or under any other agreement, plan or arrangement
maintained by the Company (the "Change in Control Payments") are
or at any time becomes subject to the tax imposed by
<PAGE> 3
Section 4999 of the Code (the "Excise Tax"), the Company shall pay
to the Executive at the time specified below, an additional lump
sum cash amount (the "Gross-Up Payment") such that the net amount
retained by the Executive after deduction of any Excise Tax on the
Change in Control Payments and any federal, state and local income
tax and Excise Tax upon the payment provided by this subparagraph,
shall be equal to the Change in Control Payments. For purposes of
determining whether any of the Change in Control Payments will be
subject to the Excise Tax and the amount of such Excise Tax, (A)
any other payments or benefits received or to be received by the
Executive in connection with a Control Change shall be treated as
"parachute payments" within the meaning of Section 280G of the
Code, and all "excess parachute payments" within the meaning of
such Section 280G shall be treated as subject to the Excise Tax,
unless in the opinion of tax counsel selected by the Company's
independent auditors and acceptable to the Executive, such other
payments or benefits (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or
in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G of the Code, and (B)
the value of any non-cash benefits or any deferred payment or
benefits shall be determined by such independent auditors in
accordance with the principles of Section 280G of the Code. For
purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates of taxation in
the state and locality of his residence on the date of his
termination of employment net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state
and local taxes. In the event that the Company furnishes the
Executive with a written opinion of its independent accountants
(reasonably satisfactory to the Executive) that the Excise Tax due
is subsequently determined to be less than the amount taken into
account hereunder at the time a Gross-Up Payment was made, the
Executive shall repay to the Company at the time that the amount
of such reduction in Excise Tax is finally determined, the portion
of the Gross-Up Payment attributable to such reduction plus
interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing,
if any portion of the Gross-Up Payment to be refunded to the
Company has been paid to any federal, state or local tax
authority, repayment thereof shall not be required until an actual
<PAGE> 4
refund or credit of such portion has been made to or obtained by
the Executive from such tax authority, and any interest payable to
the Company shall not exceed the interest received or credited to
the Executive by any such tax authority. The Executive shall be
fully indemnified by the Company for any out-of-pocket costs,
expenses or fees attributable to the filing of any refund or other
claim. Notwithstanding the foregoing, in the event the Executive
notifies the Company that the Excise Tax has been determined (by
the Executive's tax counsel or otherwise) to exceed the amount
taken into account hereunder at the time a Gross-Up Payment was
made (including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess Excise Tax (plus any interest payable with
respect to such excess) at the time that the amount of such excess
is finally determined. A Gross-Up Payment shall be paid to the
Executive not later than ten (10) business days following the
payment of any Change in Control Payments which are subject to
Section 4999 of the Code.
FOURTH
Except as set forth above, the Agreement shall remain in full
force and effect.
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have duly executed this
amendment as evidence of its adoption as of February 9, 2000.
By: /s/ Robert J. Strudler
--------------------------------------------
Name: Robert J. Strudler
Title: Chairman and Co-Chief Executive
Officer
EXECUTIVE:
/s/ Isaac Heimbinder
------------------------------------------------
Name: Isaac Heimbinder
<PAGE> 1
EXHIBIT 21
Subsidiaries of the Company
The following table sets forth the names of U.S. Home's subsidiaries and
the state in which incorporated. All subsidiaries are directly or indirectly
wholly owned by U.S. Home. Certain insignificant subsidiaries are omitted.
<TABLE>
<CAPTION>
Jurisdiction of
Incorporation
-------------
<S> <C>
Fidelity Guaranty and Acceptance Corporation Delaware
Lundgren Bros. Construction, Inc. Minnesota
USH Holding, Inc. Delaware
U.S. Home Acceptance Corporation Delaware
U.S. Home Insurors, Inc. Florida
U.S.H. Indemnity Company, Ltd. Bermuda
San Felipe Indemnity Company, Ltd. Bermuda
U.S. Home Mortgage Corporation Florida
USH Funding Corp. Texas
USH Millennium Ventures Corp. Florida
</TABLE>
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
of our report dated January 31, 2000 (except as to Note 13 which is dated
February 16, 2000) included in this Form 10-K, into the Company's previously
filed Registration Statements No. 33-64712, 33-52993, 333-02775, 333-25759
and 333-50819.
/s/ ARTHUR ANDERSEN LLP
----------------------
ARTHUR ANDERSEN LLP
Houston, Texas
March 15, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule Contains Summary Financial Information Extracted From The
Consolidated Condensed Financial Statements As Of December 31, 1999 And For The
Year Ended And Is Qualified In Its Entirety By Regerence To Such Financial
Statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> DEC-31-1999
<CASH> 14,119
<SECURITIES> 0
<RECEIVABLES> 121,967
<ALLOWANCES> 0
<INVENTORY> 1,245,347
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,602,640
<CURRENT-LIABILITIES> 0
<BONDS> 553,089
0
0
<COMMON> 137
<OTHER-SE> 578,512
<TOTAL-LIABILITY-AND-EQUITY> 1,602,640
<SALES> 0
<TOTAL-REVENUES> 1,824,456
<CGS> 1,452,043
<TOTAL-COSTS> 1,661,749
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 46,875
<INCOME-PRETAX> 115,832
<INCOME-TAX> 43,437
<INCOME-CONTINUING> 72,395
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 72,395
<EPS-BASIC> 5.41
<EPS-DILUTED> 5.30
</TABLE>
