EXHIBIT 1.04
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SECOND SUPPLEMENTAL INDENTURE
BY AND AMONG
XXXXXXX HOMES, INC.
(FORMERLY KNOWN AS XXXXXXX HOLDINGS, INC.),
XXXXXXX RESIDENTIAL, INC.
(FORMERLY KNOWN AS XXXXXXX HOMES, INC.),
AND
BANK OF HAWAII,
ACTING THROUGH ITS PACIFIC CENTURY TRUST DIVISION,
AS TRUSTEE
DATED AS OF JUNE 21, 2001
SUPPLEMENTING AND AMENDING THE
INDENTURE, DATED AS OF JANUARY 15, 1993,
BY AND BETWEEN XXXXXXX RESIDENTIAL, INC.
(FORMERLY KNOWN AS XXXXXXX HOMES, INC.)
("XXXXXXX RESIDENTIAL") AND
XXXXXX TRUST COMPANY, LIMITED (AS PREDECESSOR TRUSTEE),
AS AMENDED AND SUPPLEMENTED BY A FIRST SUPPLEMENTAL
INDENTURE, DATED AS OF APRIL 2, 2001,
BY AND AMONG XXXXXXX RESIDENTIAL, XXXXXXX HOMES, INC. (FORMERLY KNOWN AS
XXXXXXX HOLDINGS, INC.) AND THE TRUSTEE,
PROVIDING FOR
6.5% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; INTERPRETATION..................................................................2
Section 1.1 Definitions...........................................................................2
Section 1.2 Interpretation........................................................................2
ARTICLE II ASSUMPTION BY SUCCESSOR CORPORATION..........................................................2
ARTICLE III AMENDMENTS...................................................................................2
Section 3.1 Amendment to Form of Debenture........................................................2
Section 3.2 Amendment to Section 1.01 (Definitions)...............................................3
Section 3.3 Global Amendment......................................................................4
Section 3.4 Amendment to Sections 15.02, 15.05, 15.08, 15.09, 15.10, 16.02 and 16.03..............4
Section 3.5 Amendment to Section 17.03............................................................4
ARTICLE IV MISCELLANEOUS................................................................................5
Section 4.1 Conflict with the Trust Indenture Act.................................................5
Section 4.2 Date and Time of Effectiveness........................................................5
Section 4.3 Debentures Deemed Conformed...........................................................5
Section 4.4 Successors............................................................................5
Section 4.5 Benefits of Supplemental Indenture....................................................5
Section 4.6 Separability..........................................................................5
Section 4.7 Trustee Responsibility................................................................5
Section 4.8 Headings..............................................................................6
Section 4.9 Counterparts..........................................................................6
Section 4.10 Governing Law.........................................................................6
SECOND SUPPLEMENTAL INDENTURE, dated as of June 21, 2001 (this
"SUPPLEMENTAL INDENTURE"), by and among XXXXXXX HOMES, INC., a Delaware
corporation (formerly known as Xxxxxxx Holdings, Inc.) ("XXXXXXX HOMES"),
XXXXXXX RESIDENTIAL, INC., a Delaware corporation (formerly known as Xxxxxxx
Homes, Inc.) ("XXXXXXX RESIDENTIAL"), and BANK OF HAWAII, ACTING THROUGH ITS
PACIFIC CENTURY TRUST DIVISION, as successor trustee (the "TRUSTEE").
WHEREAS, Xxxxxxx Residential and Xxxxxx Trust Company, Limited, as the
predecessor to the Trustee, entered into an Indenture, dated as of January 15,
1993 (the "ORIGINAL INDENTURE"), providing for the issuance by Xxxxxxx
Residential of its 6.5% Convertible Subordinated Debentures (the "DEBENTURES");
and
WHEREAS, Xxxxxxx Residential, Xxxxxxx Homes and the Trustee entered
into a First Supplemental Indenture, dated as of April 2, 2001 (the "FIRST
SUPPLEMENTAL INDENTURE"), providing, among other things, that each Debenture
shall be convertible into Class A Common Stock, par value $.001 per share, of
Xxxxxxx Homes instead of Common Stock of Xxxxxxx Residential (the Original
Indenture as amended by the First Supplemental Indenture is referred to herein
as the "AMENDED INDENTURE"); and
WHEREAS, on April 2, 2001, pursuant to the Plan of Reorganization (as
defined in the First Supplemental Indenture), Xxxxxxx Residential changed its
name from "Xxxxxxx Homes, Inc." to "Xxxxxxx Residential, Inc.", and Xxxxxxx
Homes changed its name from "Xxxxxxx Holdings, Inc." to "Xxxxxxx Homes, Inc.";
and
WHEREAS, pursuant to Section 2.6(b) of the Plan of Reorganization, on
the date hereof, Xxxxxxx Residential shall be merged into Xxxxxxx Homes, and
Xxxxxxx Homes shall be the surviving corporation of such merger (the effective
time of such merger on the date hereof is referred to herein as the "MERGER
EFFECTIVE Time"); and
WHEREAS, Section 12.01 of the Amended Indenture provides that the
Company may not merge into any person unless the person into which the Company
is merged shall be a corporation, partnership or trust, shall be 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, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Debentures and the performance or
observance of every covenant of the Indenture on the part of the Company to be
performed or observed; and
WHEREAS, pursuant to Section 11.01 of the Amended Indenture, Xxxxxxx
Residential has requested Xxxxxxx Homes and the Trustee to join with Xxxxxxx
Residential in executing this Supplemental Indenture; and
WHEREAS, Section 11.01 of the Amended Indenture provides that the
Company and the Trustee may enter into a supplemental indenture without the
consent of any holder of the Debentures for the purpose of evidencing the
succession of another corporation to the Company and the assumption by the
successor corporation of the covenants, agreements and obligations of the
Company pursuant to Article Twelve of the Amended Indenture and to make other
changes which shall not adversely affect the interests of the Debenture holders;
and
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WHEREAS, Xxxxxxx Residential, Xxxxxxx Homes and the Trustee have agreed
to execute this Supplemental Indenture and have done all things necessary under
their respective charters and by-laws and the Amended Indenture to enter into
this Supplemental Indenture;
NOW, THEREFORE, in consideration of these premises, it is mutually
covenanted and agreed for the equal and proportionate benefit of all holders of
the Debentures as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 DEFINITIONS. Capitalized terms that are defined in the
preamble or the recitals hereto shall have such meanings throughout this
Supplemental Indenture. Capitalized terms used but not defined in this
Supplemental Indenture shall have the meanings ascribed to them in the Amended
Indenture. The meanings assigned to all defined terms used in this Supplemental
Indenture shall be equally applicable to both the singular and plural forms of
such defined terms. The term "INDENTURE" as used herein shall mean the Amended
Indenture, as amended and supplemented by this Supplemental Indenture, or as
otherwise supplemented or amended from time to time by one or more supplemental
indentures thereto or hereto entered into pursuant to the applicable provisions
of the Indenture.
Section 1.2 INTERPRETATION. References in the Amended Indenture
(including references in the Amended Indenture as amended or supplemented
hereby) to "this Indenture" (and indirect references such as "hereunder,"
"herein" and "hereof") shall be deemed references to the Amended Indenture as
amended and supplemented hereby. All of the covenants, agreements and provisions
of this Supplemental Indenture shall be deemed to be and construed as part of
the Amended Indenture to the same effect as if fully set forth therein and shall
be fully enforceable in the manner provided in the Amended Indenture. Except as
otherwise expressly provided in this Supplemental Indenture, all of the
covenants, agreements and provisions of the Amended Indenture shall remain in
full force and effect.
ARTICLE II
ASSUMPTION BY SUCCESSOR CORPORATION
Pursuant to Section 12.01 of the Amended Indenture, Xxxxxxx Homes
hereby assumes the due and punctual payment of the principal of (and premium, if
any) and interest on all the Debentures and the performance or observance of
every covenant of the Amended Indenture on the part of Xxxxxxx Residential to be
performed or observed.
ARTICLE III
AMENDMENTS
Section 3.1 AMENDMENT TO FORM OF DEBENTURE. With reference to Section
3.3 below (providing that all then outstanding Debentures as of the effective
date of this Supplemental
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Indenture shall be deemed conformed to this Supplemental Indenture without
necessity of reissuance or exchange), the form of Debenture set forth in the
second "Whereas" clause of the Amended Indenture (as a result of the amendment
thereto pursuant to Section 2.1 of the First Supplemental Indenture) is hereby
amended as follows:
(a) the form of Debenture set forth in the second "Whereas" clause
of the Amended Indenture shall be deleted in its entirety and replaced with the
form of Debenture set forth in the second "Whereas" clause of the Original
Indenture.
(b) the form of Debenture as amended pursuant to clause (a) above
shall be further amended such that the words "XXXXXX TRUST COMPANY, LIMITED",
appearing in the signature block for the Trustee in the Form of Trustee's
Certificate of Authentication on page 3 of the form of Debenture, shall be
replaced with the words "BANK OF HAWAII, acting through its Pacific Century
Trust division."
(c) the form of Debenture as amended pursuant to clauses (a) and (b)
above shall be further amended such that the words `an Indenture dated as of
January 15, 1993 (herein called the "Indenture"), between the Company and Xxxxxx
Trust Company, Limited (herein called the "Trustee")', appearing in the first
paragraph of the Form of Reverse of Debenture on page 3 of the form of
Debenture, shall be replaced with the following words:
`an Indenture, dated as of January 15, 1993, by and between the
predecessor of the Company and Xxxxxx Trust Company, Limited (the
predecessor trustee), as amended and supplemented by a First
Supplemental Indenture, dated as of April 2, 2001, by and among the
predecessor of the Company, the Company and Bank of Hawaii, acting
through its Pacific Century Trust division, as successor trustee (the
"Trustee"), as further amended and supplemented by a Second
Supplemental Indenture, dated as of June 21, 2001, by and among the
predecessor of the Company, the Company and the Trustee (as so amended
and supplemented, the "Indenture")'.
Section 3.2 AMENDMENT TO SECTION 1.01 (DEFINITIONS). Section 1.01 of
the Amended Indenture shall be amended as follows:
(a) Section 1.01 of the Amended Indenture shall be amended by
inserting therein the following terms and definitions:
(i) COMMON STOCK: The term "Common Stock" shall mean Class A
Common Stock, par value $.001 per share, of the Company or shares of any class
or classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption by the Company; PROVIDED
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications; PROVIDED, FURTHER, that the term
"Common Stock" shall not include the Company's Class B Common Stock, par value
$.001 per share, or
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shares of any class or classes resulting from any reclassification or
reclassifications thereof
(ii) SECOND SUPPLEMENTAL INDENTURE: The term "Second
Supplemental Indenture" shall mean the Second Supplemental Indenture, dated as
of June 21, 2001, by and among the Company, Xxxxxxx Residential and the Trustee.
(iii) XXXXXXX RESIDENTIAL: The term "Xxxxxxx Residential" shall
mean Xxxxxxx Residential, Inc., a Delaware corporation (formerly known as
Xxxxxxx Homes, Inc.), predecessor to the Company under this Indenture.
(b) The definitions of the terms "Class A Common Stock" and "Xxxxxxx
Holdings" shall be deleted from Section 1.01 of the Amended Indenture.
(c) The definitions of the terms "First Supplemental Indenture",
"Company" and "Corporate Office of the Trustee" shall be amended each to read in
its entirety as follows:
(i) FIRST SUPPLEMENTAL INDENTURE: The term "First Supplemental
Indenture" shall mean the First Supplemental Indenture, dated as of April 2,
2001, by and among Xxxxxxx Residential, the Company and the Trustee.
(ii) COMPANY: The term "Company" shall mean Xxxxxxx Homes,
Inc., a Delaware corporation (formerly known as Xxxxxxx Holdings, Inc.), the
successor under this Indenture to Xxxxxxx Residential, Inc. (formerly known as
Xxxxxxx Homes, Inc.), and, subject to ther provisions of Article Twelve, shall
include its successors and assigns.
(iii) CORPORATE TRUST OFFICE OF THE TRUSTEE: The term
"Corporate Trust Office of the Trustee," or other similar terms, shall mean the
office of the Trustee at which, at any particular time, its corporate trust
business shall be principally administered, which office, at the date of the
Second Supplemental Indenture, is located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000."
(d) The definition of the term "Subsidiary" in the Amended Indenture
shall be deleted in its entirety and replaced with the definition of the term
"Subsidiary" in the Original Indenture.
Section 3.3 GLOBAL AMENDMENT. All instances in the Amended Indenture to
the term "Class A Common Stock" shall be replaced with the term "Common Stock."
Section 3.4 AMENDMENT TO SECTIONS 15.02, 15.05, 15.08, 15.09, 15.10,
16.02 AND 16.03. Sections 15.02, 15.05, 15.08, 15.09, 15.10, 16.02 and 16.03 of
the Amended Indenture shall be deleted in their entirety and replaced with
Sections 15.02, 15.05, 15.08, 15.09, 15.10, 16.02 and 16.03, respectively, of
the Original Indenture.
Section 3.5 AMENDMENT TO SECTION 17.03. The last sentence of Section
17.03 shall be amended to read in its entirety as follows:
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"Any notice direction, request or demand hereunder to and upon the
Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Corporate Trust
Office of the Trustee, which office is, as the date of the Second
Supplemental Indenture, located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000, Attention: Corporate Trust Department;
telephone: (000) 000-0000; facsimile: (000) 000-0000."
ARTICLE IV
MISCELLANEOUS
Section 4.1 CONFLICT WITH THE TRUST INDENTURE ACT. If any provision of
this Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act of 1939 (the "TIA") that is required under the TIA to be part of
and govern the Indenture, such provision of the TIA shall control. If any
provision hereof modifies or excludes any provision of the TIA that may be so
modified or excluded under the TIA with respect to the Indenture, such provision
of the TIA shall be deemed to be so modified or excluded with respect to this
Supplemental Indenture.
Section 4.2 DATE AND TIME OF EFFECTIVENESS. This Supplemental Indenture
shall take effect and become a legally binding instrument at and as of the
Merger Effective Time.
Section 4.3 DEBENTURES DEEMED CONFORMED. As of the effective date of
this Supplemental Indenture, the provision of each Debenture then outstanding
shall be deemed to be conformed, without necessity for any reissuance or
exchange of such Debenture or any other action on the part of the holders of the
Debentures, the Company or the Trustee, so as to reflect this Supplemental
Indenture.
Section 4.4 SUCCESSORS. All agreements by Xxxxxxx Homes, Xxxxxxx
Residential and the Trustee in this Supplemental Indenture and in the Amended
Indenture, as amended hereby, shall bind their respective successors.
Section 4.5 BENEFITS OF SUPPLEMENTAL INDENTURE. Nothing in this
Supplemental Indenture, express or implied, shall give any Person, other than
the parties hereto and their successors hereunder, and the holders of the
Debentures, any benefit or any legal and equitable right, remedy or claim under
this Supplemental Indenture or the Amended Indenture, as amended hereby.
Section 4.6 SEPARABILITY. In case any provision in this Supplemental
Indenture, or in the Amended Indenture, as amended hereby, shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be in any way affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
fullest extent permitted by law.
Section 4.7 TRUSTEE RESPONSIBILITY. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Supplemental Indenture other
than as set forth in the Amended Indenture. This Supplemental Indenture is
executed and accepted by the Trustee subject to all of
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the terms and conditions of its acceptance of the trusts under the Amended
Indenture, as fully as if said terms and conditions were set forth in full
herein.
Section 4.8 HEADINGS. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience and reference only,
are not to be considered a part of this Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions hereof.
Section 4.9 COUNTERPARTS. This Supplemental Indenture may be executed
in counterparts, each of which shall for all purposes be deemed to be an
original, and all of which shall together constitute but one and the same
instrument.
Section 4.10 GOVERNING LAW. This Supplemental Indenture shall be deemed
to be a contract made under the laws of Delaware, and for all purposes shall be
construed in accordance with the laws of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
XXXXXXX HOMES, INC.
(FORMERLY KNOWN AS XXXXXXX HOLDINGS, INC.)
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President and Chief Executive Officer
XXXXXXX RESIDENTIAL, INC.
(FORMERLY KNOWN AS XXXXXXX HOMES, INC.)
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President and Chief Executive Officer
BANK OF HAWAII, ACTING THROUGH ITS PACIFIC CENTURY
TRUST DIVISION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Assistant Vice President
By: /s/ Xxxxxx X. Xxx
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Xxxxxx X. Xxx
Vice President
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