-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DLrvSeHP//D/3HhPo71ExcwiIcCi1eiZW4ZRx7JXHfJ35C9WFOOzXZa4RXccPVuv sRtvILlqqNLbGA8n8ser+Q== 0000950123-97-007312.txt : 19970827 0000950123-97-007312.hdr.sgml : 19970827 ACCESSION NUMBER: 0000950123-97-007312 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19970821 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19970826 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: U S HOME CORP /DE/ CENTRAL INDEX KEY: 0000101640 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 210718930 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-05899 FILM NUMBER: 97670029 BUSINESS ADDRESS: STREET 1: 1800 WEST LOOP SOUTH STREET 2: STE 1900 CITY: HOUSTON STATE: TX ZIP: 77027 BUSINESS PHONE: 7138772311 MAIL ADDRESS: STREET 1: PO BOX 2863 CITY: HOUSTON STATE: TX ZIP: 77252 FORMER COMPANY: FORMER CONFORMED NAME: UNITED STATES HOME & DEVELOPMENT CORP DATE OF NAME CHANGE: 19710713 8-K 1 U.S. HOME CORPORATION 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 ------------------ Date of Report (Date of Earliest Event Reported): AUGUST 21, 1997 U.S. HOME CORPORATION (Exact Name of Registrant as Specified in Charter) DELAWARE 1-5899 21-0718930 (State or Other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) 1800 WEST LOOP SOUTH HOUSTON, TEXAS 77027 (Address of Principal Executive Offices)(Zip Code) Registrant's Telephone Number, Including Area Code: (713) 877-2311 NOT APPLICABLE (Former Name or Former Address, If Changed Since Last Report) 2 ITEM 5. OTHER EVENTS. U.S. Home Corporation, a Delaware corporation is filing this Form 8-K, including the documents attached as exhibits hereto, in connection with its Registration Statement on Form S-3 (Registration No. 333-31457), filed on July 17, 1997, as amended or supplemented. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (c) Exhibits EXHIBIT NO. DESCRIPTION OF DOCUMENT - ------ ----------------------- 1 Underwriting Agreement by and between U.S. Home Corporation and Dillon, Read & Co. Inc. 10 Consent and First Amendment to Credit Agreement, dated as of August 21, 1997, among U.S. Home Corporation, the Lenders listed on the signature pages to the Credit Agreement dated as of May 28, 1997, and The First National Bank of Chicago, as Agent (the "Agent") and the Agent. 2 3 Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. U.S. HOME CORPORATION Date: August 25, 1997 By: /s/ Chester P. Sadowski ------------------------ Chester P. Sadowski Vice President-Controller and Chief Accounting Officer 3 4 INDEX OF EXHIBITS EXHIBIT SEQUENTIAL NUMBER NUMBERED PAGE - ------ ------------- 1 Underwriting Agreement by and between U.S. Home Corporation and Dillon, Read & Co. Inc. 10 Consent and First Amendment to Credit Agreement, dated as of August 21, 1997, among U.S. Home Corporation, the Lenders listed on the signature pages to the Credit Agreement dated as of May 28, 1997, and The First National Bank of Chicago, as Agent (the "Agent") and the Agent. 4 EX-99.1 2 UNDERWRITING AGREEMENT 1 EXHIBIT 1 U.S. HOME CORPORATION 8.25% Senior Notes due 2004 8.88% Senior Subordinated Notes due 2007 UNDERWRITING AGREEMENT Dated August 25, 1997 2 UNDERWRITING AGREEMENT August 25, 1997 DILLON, READ & CO. INC. 535 Madison Avenue New York, New York 10022 Dear Sirs and Mesdames: U.S. Home Corporation (hereinafter the "COMPANY"), proposes to sell to you $100,000,000 aggregate principal amount of its 8.25% Senior Notes due 2004 (the "SENIOR NOTES") and $125,000,000 aggregate principal amount of its 8.88% Senior Subordinated Notes due 2007 (the "SENIOR SUBORDINATED NOTES", together with the Senior Notes, the "NOTES"), each issued pursuant to an indenture (together, the "INDENTURES") to be dated as of August 28, 1997, between the Company and IBJ Schroder Bank & Trust Company, as trustee (the "TRUSTEE"). 1. Representations and Warranties of the Company: The Company represents and warrants to you that: (a) the Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the "ACT"), and has filed with the Securities and Exchange Commission (the "COMMISSION") a registration statement on such form, which has become effective, for the registration under the Act of the Notes. Such registration statement, as amended at the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with said Rule. The Company proposes to file with the Commission pursuant to Rule 424(b) under the Act a supplement to the form of prospectus included in such registration statement relating to the Notes and the plan of distribution thereof and has previously advised you of all further information (financial and other) with respect to the Company to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the "REGISTRATION STATEMENT"; the prospectus dated August 25, 1997 is hereinafter called the "BASIC PROSPECTUS"; and the Prospectus Supplement 3 to the Basic Prospectus dated August 25, 1997 in the form in which it shall be filed by the Company with the Commission pursuant to Rule 424(b) (including the Basic Prospectus as so supplemented) is hereinafter called the "FINAL PROSPECTUS". Any reference herein to the Registration Statement, the Basic Prospectus, or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein (the "INCORPORATED DOCUMENTS") pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the "EXCHANGE ACT") on or before the date of this Agreement, or the issue date of the Basic Prospectus, or the Final Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Basic Prospectus, or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference; (b) as of the date hereof, when the Final Prospectus is first filed pursuant to Rule 424(b) under the Act, when, prior to the time of purchase, any amendment to the Registration Statement becomes effective (including the filing of any Incorporated Documents), when any supplement to the Final Prospectus is filed with the Commission and at the time of purchase, (i) the Registration Statement, as amended as of any such time, and the Final Prospectus, as amended or supplemented as of any such time, and the Indentures will comply in all material respects with the applicable requirements of the Act, the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and the Exchange Act and the respective rules thereunder and (ii) neither the Registration Statement, as amended as of any such time, nor the Final Prospectus, as amended or supplemented as of any such time, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification of the Trustee (Form T-1) under the Trust Indenture Act or (ii) the information contained in or omitted from the 2 4 Registration Statement or the Final Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by you specifically for use in connection with the preparation of the Registration Statement or the Final Prospectus; (c) all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to (i) own its properties and conduct its business as described in the Final Prospectus, (ii) execute and deliver this Agreement and the Indentures and (iii) issue, sell and deliver the Notes as herein contemplated; (d) each of the Company and its subsidiaries (the "SUBSIDIARIES") is duly qualified or licensed by and is in good standing in, each jurisdiction in which it conducts its respective businesses and in which the failure, individually or in the aggregate, to be so licensed or qualified would have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries taken as a whole; each of the Company and its Subsidiaries is in compliance in all respects with the laws, orders, rules, regulations and directives issued or administered by each such jurisdiction, except to the extent the failure to so comply would not have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries taken as a whole; (e) neither the Company nor any Subsidiary is in breach of, or in default under (nor has any event occurred which with notice, lapse of time or both would constitute a breach of, or default under), its respective charter, by-laws, partnership agreements, or other organizational documents or in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them is bound, except to the extent such breach or default would not have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries, taken as a whole; and the execution, delivery and performance of this Agreement and the Indentures, the 3 5 issuance of the Notes and the consummation of the transactions contemplated hereby and thereby will not conflict with, or result in any breach of, or constitute a default under (nor constitute an event which with notice, lapse of time or both would constitute a breach of, or default under), any provisions of the charter or by-laws of the Company or any of its Subsidiaries or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary; (f) the Indentures have been duly authorized by the Company and, when executed and delivered by the Company and the Trustee, will be legal, valid and binding agreements of the Company enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and general principles of equity; (g) the Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the terms of the Indentures and delivered to and paid for by you, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and general principles of equity; (h) this Agreement has been duly authorized, executed and delivered by the Company; (i) the Notes and the Indentures conform in all material respects to the description thereof contained in the Final Prospectus; (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance and sale of the Notes other than approvals, authorizations, consents, orders or filings which have already been obtained or made and registration of the Notes under the Act, qualification of the Indentures and the Trustee under the Trust Indenture Act, and any necessary qualification 4 6 under the securities or blue sky laws of the various jurisdictions in which the Notes are being offered by you; (k) Arthur Andersen LLP, whose report on the consolidated financial information of the Company is included in the Registration Statement and Final Prospectus, are independent public accountants with respect to the Company, as required by the Act and the applicable published rules and regulations thereunder; (l) each of the Company and its Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its respective business except to the extent the absence thereof would not have a material adverse effect on the condition (financial or other), business, properties, prospects, net worth or results of operations of the Company and its Subsidiaries taken as a whole; neither the Company nor any Subsidiary is in violation of, or in default under, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of its Subsidiaries, the result of which would have a material adverse effect on the condition (financial or other), business, net worth or results of operations of the Company and its Subsidiaries taken as a whole; (m) all legal or governmental proceedings, contracts or documents of a character required to be described in the Registration Statement or the Final Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required; (n) except as set forth in the Final Prospectus, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective properties, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency that could result in a judgment, decree or order having a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries taken as a whole; (o) the audited financial statements included in the Registration Statement and the Final Prospectus present fairly in all material respects 5 7 the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of the Company and its Subsidiaries for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved; (p) subsequent to the respective dates as of which information is given in the Registration Statement and Final Prospectus, and except as may be otherwise described or referred to in the Registration Statement or Final Prospectus, there has not been (A) any material and adverse change in the condition (financial or other), business, properties, net worth or results of operations, regulatory environment, present or prospective of the Company and its Subsidiaries taken as a whole, (B) any transaction, which is material to the Company and its Subsidiaries taken as a whole, contemplated or entered into by the Company or any of its Subsidiaries except transactions entered into in the ordinary course of business or (C) any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries taken as a whole; (q) there is no claim pending or, to the knowledge of the Company, threatened or contemplated under any Environmental Law (as defined below) against the Company or any of its Subsidiaries which, if adversely determined, would have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries taken as a whole; there are no past or present actions or conditions including, without limitation, the release of any hazardous substance or waste regulated under any Environmental Law that are likely to form the basis of any such claim under existing law against the Company or any of its Subsidiaries which, if adversely determined, would have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries taken as a whole. The term "ENVIRONMENTAL LAW" means any federal, state, local or foreign law, rule or regulation now in effect governing pollution or protection of the environment; and (r) the Company and its Subsidiaries have good title to all properties and assets owned or leased by them, in each case free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and defects (other than those set forth in the Final Prospectus, including, 6 8 without limitation, the financial statements and the notes thereto or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries) except to the extent that would not have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its Subsidiaries taken as a whole. 2. Sale and Purchase: Upon the basis of the warranties and representations and the other terms and conditions herein set forth, the Company agrees to sell to you and you agree to purchase from the Company, the aggregate principal amount of the Senior Notes at a purchase price of 98.75% of the principal amount thereof and the aggregate principal amount of the Senior Subordinated Notes at a purchase price of 97.75% of the principal amount thereof. You shall release the Notes for public sale promptly after this Agreement becomes effective. You may from time to time increase or decrease the public offering price after the initial public offering to such extent as you may determine. 3. Payment and Delivery: Payment of the purchase price for the Notes shall be made to the Company by wire transfer of immediately available funds to an account or accounts designated by the Company against delivery of the certificates for the Notes to you or for your account. Such payment and delivery shall be made at 10:00 A.M., New York City time, on August 28, 1997 (unless another time shall be agreed to by you and the Company). The time at which such payment and delivery are actually made is hereinafter sometimes called the "time of purchase." The Notes shall be issued to you in book-entry form in such names and in such denominations as you shall specify. 4. Certain Covenants of the Company: The Company hereby agrees: (a) to furnish such information as may be required and otherwise to qualify the Notes for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect as long as required for the distribution of the Notes; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Notes); to advise you promptly of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and to make every reasonable effort to obtain 7 9 the withdrawal of any order or suspension at the earliest practicable moment; (b) to furnish to you and your counsel, as many copies of the Final Prospectus and any amendments thereof and supplements thereto as you may reasonably request; (c) to advise you promptly within the time during which a prospectus to the Notes is required to be delivered under the Act, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or Final Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; and to advise you promptly within the time during which a prospectus to the Notes is required to be delivered under the Act of any proposal to amend or supplement the Registration Statement or Basic Prospectus, including by filing any Incorporated Documents, and to file no such amendment or supplement to which you shall reasonably object in writing; (d) to furnish to you for the period when the Notes are outstanding (i) copies of any reports or other communications that the Company shall send to its stockholders generally or holders of the Notes or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission; (e) to advise you promptly of the happening of any event known to the Company within the time during which a prospectus relating to the Notes is required to be delivered under the Act which would, in the reasonable judgment of the Company, require the making of any change in the Final Prospectus, as then supplemented, then being used, or in the information incorporated therein by reference, so that the Final Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, and, during such time, to prepare and furnish, at the Company's expense, to you 8 10 promptly such amendments or supplements to such Final Prospectus as may be necessary to reflect any such change and to furnish to you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (f) to make generally available to its holders of Notes, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the date of this Agreement as soon as is reasonably practicable after the termination of such twelve-month period but not later than 15 months thereafter; (g) to furnish to each of you and your counsel signed copies of the Registration Statement (in such quantities as you may reasonably request), as initially filed with the Commission, all amendments thereto (including the exhibits thereto) and all documents incorporated by reference therein; (h) to furnish to you as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and its Subsidiaries that have been read by the Company's independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(c) of this Agreement; (i) to apply the net proceeds from the sale of the Notes in the manner set forth under the caption "Use of Proceeds" in the Final Prospectus; (j) whether or not the transactions contemplated in this Agreement are consummated or this Agreement otherwise becomes effective or is terminated, to pay all out-of-pocket expenses, fees and taxes (other than (x) any transfer taxes and (y) fees and disbursements of your counsel, except as set forth under Section 5 hereof and clauses (iii) and (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Final Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to you (including costs of mailing and shipment), (ii) the preparation, issuance, execution, authentication and delivery of the Notes, (iii) the word processing and/or printing of this Agreement, and the Indentures and the reproduction and/or printing and furnishing of copies of each thereof to you (including costs of mailing and 9 11 shipment), (iv) the qualification of the Notes for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including, if any, the legal fees, filing fees and other disbursements of your counsel) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to you, (v) any registration of the Notes under the Exchange Act, (vi) obtaining an investment rating for the Notes (including fees payable to investment rating agencies), (vii) any filing for review of the public offering of the Notes by the NASD and (viii) the performance of the Company's other obligations hereunder; (k) to furnish to you, contemporaneously with any filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (e) above, a copy of any document filed pursuant to Sections 13, 14 or 15(d) of the Exchange Act; and (l) until the time of purchase, not to sell, contract to sell, grant any option to sell or otherwise dispose of, directly or indirectly, any debt securities of the Company which mature more than one year following the time of purchase and which are substantially similar to the Notes, without your prior written consent. 5. Reimbursement of Underwriter's Expenses: If the Notes are not delivered for any reason other than as a result of a default by you of your obligations hereunder, the Company shall reimburse you for all of your out-of-pocket expenses, including the reasonable fees and disbursements of your counsel but without any further obligation on the part of the Company for loss of profits or otherwise. 6. Conditions of Underwriter's Obligations: Your obligations hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the time of purchase, unless previously waived, the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Company shall furnish to you at the time of purchase an opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP, counsel for the Company, addressed to you and dated as of the time of purchase and in form reasonably satisfactory to your counsel, Davis Polk & Wardwell, stating that: 10 12 (i) the Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware. The Company has corporate power and authority to (A) own its properties and conduct its business as described in the Final Prospectus and (B) execute and deliver this Agreement and the Indentures and to issue, sell and deliver the Notes as described in the Final Prospectus; (ii) U.S. Home Mortgage Corporation ("U.S. HOME MORTGAGE") has been duly incorporated and is validly existing and in good standing under the laws of the State of Florida. U.S. Home Mortgage has corporate power and authority to own its properties and to conduct its business as described in the Final Prospectus; (iii) the Company and U.S. Home Mortgage are duly qualified as foreign corporations and are in good standing in each jurisdiction set forth in Schedule 1 to such opinion; (iv) this Agreement has been duly authorized, executed and delivered by the Company; (v) the Indentures have been duly authorized by the Company and, when executed and delivered by the Company, and assuming the authorization, execution and delivery by the Trustee, will be legal, valid and binding agreements of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors' rights in general and to general principles of equity (regardless whether considered in a proceeding at law or in equity); (vi) the Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the terms of the Indentures and delivered to and paid for by you in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws relating to or affecting the enforcement of creditors' rights in general and to general principles of equity (regardless whether considered in a proceeding at law or in equity); 11 13 (vii) the Notes and the Indentures conform in all material respects to the descriptions thereof contained in the Registration Statement and the Final Prospectus (except that in so opining such counsel need not express an opinion as to any financial or statistical data included in the description thereof); (viii) the Registration Statement and the Final Prospectus (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein and the Trustee's Statement of Eligibility on Form T-1, as to which such counsel need not express an opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act; (ix) the Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order proceedings with respect thereto are pending or threatened by the Commission; (x) except for approvals, authorizations, consents and filings which have been made and obtained, no approval, authorization, consent or order of or filing with any federal, state or local governmental or regulatory commission, board, body, authority or agency is required for the valid issue or sale of the Notes as contemplated hereby, other than registration of the Notes under the Act and qualification of the Trustee and the Indentures under the Trust Indenture Act and those required under state securities or "blue sky" laws in connection with the purchase and distribution of the Notes by you; (xi) the execution, delivery and performance of this Agreement and the Indentures and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby do not and will not result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), any provisions of the charter or by-laws of the Company or U.S. Home Mortgage or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or U.S. Home Mortgage is a party or by which any of them or their respective properties may be bound, identified in a schedule to such opinion, 12 14 or under any law, regulation or rule of any governmental authority of the State of New York or the federal government of the United States of America or any decree, judgment or order applicable to the Company or U.S. Home Mortgage, identified in a schedule to such opinion; (xii) to the best of such counsel's knowledge, there are no contracts, licenses, agreements, leases or documents of a character which are required to be filed as exhibits to the Registration Statement or to be summarized or described in the Final Prospectus which have not been so filed, summarized or described; (xiii) to the best of such counsel's knowledge, there are no actions, suits or proceedings pending or threatened against the Company or any of its Subsidiaries or any of their respective properties, at law or in equity or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Final Prospectus but are not so described; (xiv) the Indentures have been duly qualified under the Trust Indenture Act; and (xv) the Incorporated Documents, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), complied as to form in all material respects with the Exchange Act (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein as to which such counsel need express no opinion). In addition, such counsel shall state that such counsel have participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and your representatives at which the contents of the Registration Statement and Final Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Final Prospectus, on the basis of the foregoing, nothing has come to the attention of such counsel that causes them to believe that the Registration Statement or any amendment thereto at the time such Registration Statement or amendment became effective contained an untrue statement of a material fact or omitted to state a material fact required to 13 15 be stated therein or necessary to make the statements therein not misleading, or that the Final Prospectus or any supplement thereto at the date of such Final Prospectus or such supplement, and at all times thereafter up to and including the time of purchase, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no belief with respect to the financial statements and schedules and other financial and statistical data included in the Registration Statement or Final Prospectus or with respect to the Trustee's Statement of Eligibility and Qualification on Form T-1). In rendering their opinion, such counsel may rely, as to factual matters, on certificates of public officials and officers of the Company; provided that copies of such certificates shall be forwarded to you and provided further, that in the case of any such reliance (other than reliance on the certificates of governmental authorities). (b) The Company shall furnish to you at the time of purchase an opinion of Steven Lane, Director -- Legal of the Company, addressed to you and dated as of the time of purchase, and in form reasonably satisfactory to your counsel, Davis Polk & Wardwell, stating that: (i) the Company and U.S. Home Mortgage are duly qualified or licensed or in good standing, by or in each jurisdiction in which they conduct their respective businesses and in which the failure to be so licensed or qualified or in good standing could have a material adverse effect on the condition (financial or other), business, properties, net worth, or results of operations of the Company and U.S. Home Mortgage taken as a whole; (ii) to the best of such counsel's knowledge, neither the Company nor U.S. Home Mortgage is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), any license, indenture, mortgage, deed of trust, bank loan or credit agreement or any other agreement or instrument to which the Company or U.S. Home Mortgage is a party or by which either of them or their respective properties may be bound or affected or under any law, regulation or rule or any decree, judgment or order applicable to the Company or any of its Subsidiaries except for such matters as 14 16 could not have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and U.S. Home Mortgage, individually or taken as a whole; and (iii) the execution, delivery and performance of this Agreement and the Indentures and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby do not and will not result in any breach of, or constitute a default under any law, regulation or rule or any decree, judgment or order applicable to the Company or U.S. Home Mortgage. (c) You shall have received from Arthur Andersen LLP, a letter dated as of the date of this Agreement and addressed to you in the form heretofore approved by you. (d) You shall have received at the time of purchase an opinion from Davis Polk & Wardwell in form and substance reasonably satisfactory to you. (e) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act not later than 5:00 P.M., New York City time, on the second full business day after the date of this Agreement. (f) Prior to the time of purchase, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act, (ii) the Registration Statement and all amendments thereto, or modifications thereof, if any, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) the Final Prospectus and all amendments or supplements thereto, or modifications thereof, if any, shall not contain any untrue statement of a material fact or omit to state a material fact or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (g) Between the time of execution of this Agreement and the time of purchase, there has not been (i) any material and adverse change in the condition (financial or other), business, properties, net worth or results of operations, present or prospective, of the Company and its Subsidiaries 15 17 taken as a whole, other than as described or referred to in the Registration Statement and the Final Prospectus, (ii) any transaction that is material to the Company and its Subsidiaries, taken as a whole, contemplated or entered into by the Company or any of its Subsidiaries, other than as described or referred to in the Registration Statement and the Final Prospectus or (iii) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries taken as a whole, other than as described or referred to in the Registration Statement and the Final Prospectus. (h) The Company will, at the time of purchase, deliver to you a certificate of two of its executive officers to the effect that the representations and warranties of the Company set forth in this Agreement are, in all material respects, true and correct as of such date and the conditions set forth in paragraph (f) and paragraph (g) of this Section 6 have been met. (i) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Final Prospectus as of the time of purchase as you may reasonably request. (j) The Company shall perform such of its obligations under this Agreement as are to be performed by the terms hereof at or before the time of purchase. (k) Between the time of execution of this Agreement and the time of purchase, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement or maintenance, in the rating, if any, accorded any securities of the Company by any "nationally recognized statistical rating organization", as that term is defined in Rule 436(g)(2) promulgated under the Act. 16 18 7. Effective Date of Agreement; Termination: This Agreement shall become effective when the parties hereto have executed and delivered this Agreement. Your obligations hereunder shall be subject to termination in your absolute discretion if, at any time prior to the time of purchase, trading in securities on the New York Stock Exchange shall have been suspended or minimum prices shall have been established on the New York Stock Exchange, or if a banking moratorium shall have been declared either by the United States or New York State authorities, or if the United States shall have declared war in accordance with its constitutional processes or there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude in its effect on the financial markets of the United States, as in your judgment, to make it impracticable to market the Notes. If you elect to terminate this Agreement as provided in this Section 7, you will promptly notify the Company by letter or telegram. If the sale to you of the Notes, as contemplated by this Agreement, is not carried out by you for any reason permitted under this Agreement or if such sale is not carried out because the Company shall be unable to comply with any of the terms of this Agreement, the Company shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 4(j), 5 and 8 hereof), and you shall be under no obligation or liability to the Company under this Agreement (except to the extent provided in Section 8 hereof). 8. Indemnity by the Company and the Underwriter: (a) The Company agrees to indemnify and hold harmless you, each person that controls you within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, your agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "DILLON, READ INDEMNIFIED PARTIES") from and against any and all losses, claims, damages, judgments, liabilities and expenses (including the reasonable fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) as they are incurred (and regardless of whether the Dillon, Read indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (as amended) or the Final Prospectus (as amended or supplemented) or the Preliminary Final Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not 17 19 misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information concerning you and furnished in writing by you to the Company expressly for use therein. (b) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Dillon, Read indemnified party, with respect to which indemnity may be sought against the Company pursuant to this Section 8, such Dillon, Read indemnified party shall promptly notify the Company in writing, and the Company shall assume the defense thereof, including the employment of counsel satisfactory to the Dillon, Read indemnified party and payment of all fees and expenses. A Dillon, Read indemnified party shall have the right to employ separate counsel in any such action or proceeding and to assume the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Dillon, Read indemnified party unless (i) the employment of such counsel has been specifically authorized in writing by the Company, (ii) the Company has failed promptly to assume the defense and employ counsel satisfactory to the Dillon, Read indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both a Dillon, Read indemnified party and a Company indemnified party and such Dillon, Read indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it that are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of such Dillon, Read indemnified party), in any of which events, such fees and expenses shall be borne by the Company and reimbursed as they are incurred. It is understood, however, that the Company shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Dillon, Read indemnified parties, which firm shall be designated in writing by you, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action effected without the written consent of the Company (which consent shall not be unreasonably withheld or delayed), but if settled with the written consent of the Company, or if there is a final judgment with respect thereto, the Company agrees to indemnify and hold harmless each Dillon, Read indemnified party from and against any loss or liability by reason of such settlement or judgment. 18 20 (c) You agree to indemnify and hold harmless the Company, its directors, its officers, its agents, and any person that controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the "COMPANY INDEMNIFIED PARTIES") to the same extent as the foregoing indemnity from the Company to the Dillon, Read indemnified parties, but only with respect to information concerning you and furnished in writing by you to the Company expressly for use in the Registration Statement or the Final Prospectus. In case any action shall be brought against any Company indemnified party based on the Registration Statement or the Final Prospectus and in respect of which indemnity may be sought against you pursuant to this Section 8(c), you shall have the rights and duties given to the Company by Section 8(b) hereof (except that if the Company shall have assumed the defense thereof you shall not be required to do so, but may employ separate counsel therein and participate in the defense thereof; provided that the fees and expenses of such separate counsel shall be at your expense), and the Company indemnified parties shall have the rights and duties given to the Dillon, Read indemnified parties by Section 8(b) hereof. (d) If the indemnification provided for in this Section 8 is unavailable to any Dillon, Read indemnified party or any Company indemnified party otherwise entitled thereto under Section 8(a) or 8(c), as the case may be, then the party required to indemnify such indemnified party under this Section 8 shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, judgments, liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and you on the other from the offering of the Notes, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and you on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and you on the other shall be deemed to be in the same proportions as the total net proceeds from the offering (net of underwriting discounts and commissions, but before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by you, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and you on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company 19 21 or by you, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, judgments, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any claim or action. The Company and you agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this subsection (d), no Dillon, Read indemnified party shall be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by you and distributed to the public were offered to the public exceeds the amount of any damages which you have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation. (e) The indemnity and contribution agreements contained in this Section 8 and the covenants, warranties and representations of the Company contained in this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any Dillon, Read indemnified party or by or on behalf of any Company indemnified party, and shall survive any termination of this Agreement or the issuance and delivery of the Notes. Subject to paragraphs (b) and (c) of this Section 8, the Company and you agree to promptly notify the other of the commencement of any litigation or proceeding against it in connection with the issuance and sale of the Notes or in connection with the Registration Statement or Final Prospectus. 9. Notices: Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing or by telegram and, if to you, shall be sufficient in all respects if delivered or sent to Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022, Attention: Syndicate Department and, if to the Company, shall be sufficient in all respects if delivered to the Company at 1800 West Loop South, Houston, Texas 77027, Attention: President and Chief Operating Officer. 20 22 10. CONSTRUCTION: THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT. 11. Parties at Interest: The Agreement herein set forth has been and is made solely for the benefit of you, the Company, and the other Dillon, Read indemnified parties and Company indemnified parties, and their respective successors, assigns, executors and administrators. No other person, partnership, association or corporation (including a purchaser of the Notes, as such purchaser) shall acquire or have any right under or by virtue of this Agreement. 12. Counterparts: This Agreement may be signed by the parties in counterparts, which together shall constitute one and the same Agreement between the parties. If the foregoing correctly sets forth the understanding between the Company and you, please so indicate in the space provided below for the purpose, whereupon this Agreement and your acceptance shall constitute a binding contract between the Company and you. Very truly yours, U.S. HOME CORPORATION By: /s/ Thomas A. Napoli -------------------------- Name: Thomas A. Napoli Title: Vice President-Finance and Treasurer 21 23 Agreed to and accepted as of the date first above written: DILLON, READ & CO. INC. By: /s/ Allan Merrill ------------------------------------------ Name: Allan Merrill Title: Senior Vice President 22 EX-99.10 3 CONSENT & FIRST CREDIT AMENDMENT TO CREDIT AGRMT 1 EXHIBIT 10 CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT _______________________________________________ CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment"), dated as of August 21, 1997, among U.S. Home Corporation, a Delaware corporation (the "Borrower"), the Lenders (the "Lenders") listed on the signature pages of the Credit Agreement (the "Credit Agreement"), dated as of May 28, 1997, among the Borrower, such Lenders and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (the "Agent"), and the Agent. RECITALS: _________ A. The Borrower, the Lenders and the Agent have previously entered into the Credit Agreement. B. The Borrower filed a Registration Statement on Form S-3 (the "Shelf Registration Statement") with the Securities and Exchange Commission on July 17, 1997. The prospectus which is a part of the Shelf Registration Statement is a combined prospectus (together with any amendment or supplement thereto, the "Prospectus"), which relates to $325,000,000 aggregate principal amount of debt securities, $300,000,000 aggregate principal amount of which is related to debt to be registered under the Shelf Registration Statement, and $25,000,000 aggregate principal amount of which is related to debt previously registered under the Borrower's Registration Statement on Form S-3 declared effective on February 8, 1996. C. The Borrower intends to issue senior debt securities, senior subordinated debt securities and/or subordinated debt securities from time to time under the Prospectus (in each instance, an "Offering"). D. The Borrower intends to use the proceeds of an Offering to redeem, repurchase, defease, acquire or otherwise retire, including payments of premiums and expenses (collectively, the "Refunding Transactions"), the Borrower's 9-3/4% Senior Notes due 2003 (the "Senior Notes"), including the solicitation of consents of the holders of the Senior Notes to amend the First Indenture, and the Borrower's 4-7/8% Convertible Subordinated Debentures due 2005 (the "Convertible Subordinated Debentures"). E. The parties hereto desire to amend the Credit Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants hereinafter contained, the parties hereto, intending to be legally bound, agree as follows: 2 1. DEFINITIONS In addition to the terms defined herein, capitalized terms used in this First Amendment shall have the respective meanings ascribed thereto in the Credit Agreement. 2. CONSENT TO THE DEBT SECURITIES OFFERING 2.1 The Lenders hereby consent to an Offering consummated prior to October 31, 1997 by the Borrower of senior debt securities, senior subordinated debt securities and/or subordinated debt securities to be issued under the Prospectus (collectively, the "Debt Securities"), provided that (a) the aggregate principal amount of the Debt Securities shall not exceed $275,000,000, (b) the aggregate principal amount of the Debt Securities that are senior debt securities ("1997 Senior Debt Securities") shall not exceed $200,000,000, (c) the proceeds of such Offering are used as provided in Section 3 hereof and (d) prior to November 15, 1997 the sum of the outstanding principal amounts of the Senior Notes and the 1997 Senior Debt Securities shall be reduced to an amount not exceeding $200,000,000. 2.2 The Lenders hereby consent to the Borrower's use of the proceeds of such Debt Securities to consummate the Refunding Transactions and, to the extent that such proceeds are not sufficient, to the use of proceeds of the Advances to consummate the Refunding Transactions. 3. USE OF PROCEEDS OF DEBT OFFERING BY THE BORROWER The Borrower hereby agrees to use the proceeds of the Debt Securities prior to November 15, 1997 in connection with the Refunding Transactions. 4. MODIFICATION OF CERTAIN PROVISIONS OF CREDIT AGREEMENT 4.1 To the extent that the proceeds of the 1997 Senior Debt Securities are used to redeem, repurchase, defease, acquire or otherwise retire the Senior Notes prior to November 15, 1997, the 1997 Senior Debt Securities shall constitute Refinancing Indebtedness with respect to the Senior Notes. 4.2 For purposes of Section 9.2 of the Credit Agreement, Consolidated Funded Indebtedness shall, until November 15, 1997, exclude the Debt Securities except to the extent that the proceeds thereof have been used, directly or indirectly, in connection with the Refunding Transactions. -2- 3 4.3 For purposes of Section 9.3 of the Credit Agreement, the Debt Securities that are Subordinated Indebtedness shall constitute Refinancing Indebtedness with respect to the Convertible Subordinated Notes to the extent that the Convertible Subordinated Notes are redeemed, repurchased, defeased, acquired or otherwise retired as part of the Refunding Transactions. 5. CONSENT TO REFUNDING TRANSACTIONS The Lenders hereby consent to the Refunding Transactions with respect to the Convertible Subordinated Debentures. 6. MISCELLANEOUS 6.1 This First Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this First Amendment by signing any such counterpart. 6.2 In all respects, including all matters of construction, validity and performance, this First Amendment shall be construed in accordance with the internal laws (and not the laws of conflicts) of the State of Illinois, but giving effect to federal laws applicable to national banks. IN WITNESS WHEREOF, this First Amendment has been duly executed as of the date first above written. U.S. HOME CORPORATION By: /s/ Thomas A. Napoli ------------------------------------ Name: Thomas A. Napoli Title: Vice President - Corporate Finance and Treasurer - 3 - 4 LENDERS: THE FIRST NATIONAL BANK OF CHICAGO, INDIVIDUALLY AND AS AGENT By: /s/ Gregory A. Gilbert ------------------------------ Name: Gregory A. Gilbert Title: Vice President GUARANTY FEDERAL BANK, F.S.B. By: /s/ Randy Reid ------------------------------ Name: Randy Reid Title: Vice President CREDIT LYONNAIS NEW YORK BRANCH By: /s/ Robert Ivonevich ------------------------------ Name: Robert Ivonevich Title: Senior Vice President BANK ONE, ARIZONA, NA By: /s/ Rhonda R. Williams ------------------------------ Name: Rhonda R. Williams Title: Vice President COMERICA BANK, A MICHIGAN CORPORATION By: /s/ David J. Campbell ------------------------------ Name: David J. Campbell Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----