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EXHIBIT 10.5
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CAPITAL PACIFIC HOLDINGS, INC.,
as Issuer
CAPITAL PACIFIC HOMES, INC.,
X.X. XXXXXX NEVADA, INC.,
and XXXXXX RANCHLAND, INC.,
as Guarantors
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
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Second Supplemental Indenture
Dated as of September 10, 1997
to
Indenture
Dated as of May 13, 1994
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of September 10, 1997 among
CAPITAL PACIFIC HOLDINGS, INC. (formerly known as X.X. Xxxxxx Company, Inc.), a
Delaware corporation (the "Company"), CAPITAL PACIFIC HOMES, INC. (formerly
known as Durable Homes, Inc.), a Nevada corporation, X.X. XXXXXX NEVADA, INC.,
a Delaware corporation, and XXXXXX RANCHLAND, INC., a Delaware corporation, as
Guarantors (each a "Guarantor" and, collectively, the "Guarantors") and UNITED
STATES TRUST COMPANY OF NEW YORK, a New York banking corporation, as Trustee
under the Indenture dated as of May 13, 1994 (the "Indenture").
WHEREAS, Section 9.01(8) of the Indenture provides that the Company when
authorized by a resolution of its Board of Directors, each Guarantor, when
authorized by a resolution of its board of directors or any committee of such
board of directors duly authorized to act under the Indenture, and the Trustee
may amend or supplement the Indenture without notice to or the consent of any
Holder if the change does not materially adversely affect the rights of any
Holder; and
WHEREAS, the Company has determined to amend Section 5.01(i) of the
Indenture to provide that a successor to the Company may be a partnership, a
limited liability company, an association, a trust, or any other entity
organized and validly existing under the laws of the United States of America;
and
WHEREAS, all things necessary to make this Second Supplemental Indenture a
valid, binding and legal instrument supplemental to the Indenture have been
performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: that in order to amend the
Indenture and in consideration of the premises, and in consideration of the sum
of One Dollar by the Trustee to the Company paid, receipt whereof is hereby
acknowledged, the Company hereby agrees and provides, for the equal and
proportionate benefit of the respective Holders, as follows:
ARTICLE ONE
AMENDMENT TO INDENTURE
SECTION 1. Pursuant to Section 9.01(8) of the Indenture, the Company
hereby amends Section 5.01(i) of the Indenture by amending said Section 5.01(i)
to read in its entirety as follows:
Section 5.01(i). "The Company or such Guarantor, as the case may be, shall
be the continuing Person, or the Person (if other than the Company or such
Guarantor, as the
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case may be) formed by such consolidation or into which the Company or such
Guarantor, as the case may be, is merged or that acquired or leased such
property and assets of the Company or such Guarantor, as the case may be,
shall be a corporation, a partnership, a limited liability company, an
association, a trust or any other organization or entity organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture in form reasonably suitable to the Trustee, executed
and delivered to the Trustee, all of the obligations of the Company or such
Guarantor, as the case may be, on all of the Securities or such Guarantor's
Subsidiary Guarantee, as the case may be, under this Indenture;"
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2. Subject to the amendments provided for in this Second
Supplemental Indenture, the capitalized terms used herein and defined in the
Indenture shall, for all purposes of this Second Supplemental Indenture, have
the meanings specified in the Indenture.
SECTION 3. The recitals of fact contained in this Second Supplemental
Indenture shall be taken as the statements of the Company and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity of this Second Supplemental Indenture.
SECTION 4. The titles of the several Articles of this Second Supplemental
Indenture shall not be deemed to be any part hereof.
SECTION 5. This Second Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture be duly executed, all as of the date first written
above.
CAPITAL PACIFIC HOLDINGS, INC.,
as Issuer
By: /s/ XXXX XXXXXXXXXXX
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Name: Xxxx Xxxxxxxxxxx
Title: Chairman of the Board
Attest: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Chief Executive Officer
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CAPITAL PACIFIC HOMES, INC.,
as Guarantor
By: /s/ XXXX XXXXXXXXXXX
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Name: Xxxx Xxxxxxxxxxx
Title: Chairman of the Board
Attest: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Vice Chairman of the Board
XXXXXX RANCHLAND, INC.,
as Guarantor
By: /s/ XXXX XXXXXXXXXXX
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Name: Xxxx Xxxxxxxxxxx
Title: Chairman of the Board
Attest: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Chief Executive Officer
X.X. XXXXXX NEVADA, INC.,
as Guarantor
By: /s/ XXXX XXXXXXXXXXX
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Name: Xxxx Xxxxxxxxxxx
Title: Chairman of the Board
Attest: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Vice Chairman of the Board
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By: /s/ XXXXXXXX X. XXXXXXXXXXXX
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Name: Xxxxxxxx X. Xxxxxxxxxxxx
Title: Assistant Vice President
Attest: /s/ XXXXXX X. XXX
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Name: Xxxxxx X. Xxx
Title: Assistant Secretary
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