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EXHIBIT 10.5
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"),
dated as of September 23, 1997, between U.S. HOME CORPORATION, a Delaware
corporation (the "Company"), and IBJ XXXXXXXX BANK & TRUST COMPANY,
a banking organization organized under the laws of New York, as trustee
(the "Trustee").
WITNESSETH:
WHEREAS, in accordance with Section 10.02 of the
Indenture, relating to the 9 3/4% Senior Notes due 2003 of the Company,
dated as of June 21, 1993, between the Company and the Trustee (the
"Indenture"), the Trustee, the Company and the Holders of more than a
majority in principal amount of the Securities outstanding as of the date
hereof desire to amend certain terms of the Indenture as described below;
and
WHEREAS, the Company has solicited consents from the
Holders to the amendments contained in this Supplemental Indenture (the
"Solicitation") and the Company has received consents from Holders of more
than a majority in principal amount of the Securities outstanding as of the
date hereof; and
WHEREAS, the Board of Directors of the Company has
authorized this Supplemental Indenture; and
WHEREAS, concurrent with the Solicitation, the Company
has offered to purchase for cash on certain terms and conditions any and
all of the outstanding Securities from the Holders thereof (the "Offer");
and
WHEREAS, it is intended that this Supplemental Indenture
become effective upon acceptance for purchase by the Company pursuant to
the Offer of the Securities tendered into the Offer (the "Acceptance
Date"); and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to the Indenture according to its terms and
the terms of the Indenture have been done:
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Terms Defined in the Indenture.
All capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Indenture.
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SECTION 2. Deletion of Certain Definitions. The
following definitions in Section 1.02 of the Indenture are hereby deleted
in their entirety:
Affiliate Transaction
Consolidated Cash Flow Available for Fixed Charges
Consolidated Fixed Charge Coverage Ratio
Consolidated Income Tax Expense
Consolidated Interest Expense
Consolidated Interest Incurred
Consolidated Net Income
Independent Financial Advisor
Permitted Investments
Permitted Liens
Refinancing Indebtedness
Restricted Payment
Restricted Investment
Successor
SECTION 3. Amendment of Certain Definitions. The
following definition in Section 1.02 of the Indenture shall be amended as
indicated:
Unrestricted Subsidiary. The text of the
definition of Unrestricted Subsidiary is hereby restated to read in its
entirety as follows:
"Unrestricted Subsidiary" means each of the
Subsidiaries of the Company so designated by a resolution adopted by the
Board of Directors of the Company as provided below and whose creditors
have no direct or indirect recourse (including, without limitation,
recourse with respect to the payment of principal or interest on
Indebtedness of such Subsidiary) to the Company or a Restricted Subsidiary.
The Board of Directors of the Company may designate an Unrestricted
Subsidiary to be a Restricted Subsidiary. Any such designation or
redesignation by the Board of Directors of the Company will be evidenced
to the Trustee by the filing with the Trustee of a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation or redesignation.
SECTION 4. Deletion of Certain Covenants. The text of
Sections 4.12 (Limitations on Restricted Payments), 4.13 (Limitations on
Additional Indebtedness), 4.14 (Restrictions on Restricted Subsidiary
Indebtedness), 4.15 (Limitations and Restrictions on Capital Stock of
Subsidiaries), 4.17 (Limitations on Transactions With Affiliates), 4.18
(Limitations on Liens) and 4.19 (Limitations on Restrictions on
Distributions from Restricted Subsidiaries) of the Indenture is hereby
deleted in its entirety and is hereby replaced, in each such Section, with
"Deleted."
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SECTION 5. Deletion of Certain Restrictions with Respect
to Mergers and Consolidations. The text of Section 5.01 (Limitations on
Mergers and Consolidations) of the Indenture is hereby deleted in its
entirety and is hereby replaced with "Deleted."
SECTION 6. Deletion of Certain Events of Default. The
text of paragraphs (a)(iv) and (a)(v) of Section 6.01 of the Indenture is
hereby deleted in its entirety and is hereby replaced with "Deleted."
SECTION 7. Deletion of Certain Cross-References. Any
reference to Section 4.12, 4.13, 4.14, 4.15, 4.17, 4.18, 4.19, 5.01,
6.01(a)(iv) or 6.01(a)(v) in the Indenture is hereby deleted.
SECTION 8. Effectiveness. This Supplemental Indenture
shall become effective upon the Acceptance Date.
SECTION 9. Governing Law. This Supplemental Indenture
shall be governed by the laws of the State of New York.
SECTION 10. Counterparts. This Supplemental Indenture
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above
written.
U.S. HOME CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President - Corporate
Finance and Treasurer
IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
