EXHIBIT 2
FORM OF SUPPLEMENTAL INDENTURE
_______________________________________________________________________________
_______________________________________________________________________________
X.X. XXXXXX, INC.
AND
MANUFACTURERS AND TRADERS TRUST COMPANY,
as
Trustee
___________
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 20, 1998
___________
6 - 7/8% CONVERTIBLE SUBORDINATED NOTES DUE 2002
_______________________________________________________________________________
_______________________________________________________________________________
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of April 20, 1998, between X.X.
XXXXXX, INC., a Delaware corporation (the "Company"), and MANUFACTURERS AND
TRADERS TRUST COMPANY, a duly organized and existing banking corporation
organized under the laws of the State of New York, as trustee (the "Trustee").
RECITALS
WHEREAS, Continental Homes Holding Corp., a Delaware corporation
("Continental"), and the Trustee entered into the Indenture dated as of November
1, 1995 (the "Indenture"), pursuant to which Continental issued $86,250,000
principal amount of 6 - 7/8% Convertible Subordinated Notes due 2002 (the
"Securities");
WHEREAS, on April 20, 1998, pursuant to the laws of the State of Delaware
and in accordance with the terms of the Agreement and Plan of Merger, dated as
of December 18, 1997 (the "Merger Agreement"), by and between the Company and
Continental, Continental was duly merged with and into the Company (the
"Merger"), with the Company continuing as the surviving corporation;
WHEREAS, as a result of the Merger, the Company succeeded to all
obligations, duties and liabilities of Continental under the Indenture as if
incurred or contracted by the Company;
WHEREAS, the Company desires to supplement the Indenture to provide for the
assumption by the Company of all obligations of Continental pursuant to Section
5.01 of the Indenture and to provide for adjustment of the conversion rate
pursuant to Section 10.17 of the Indenture; and
WHEREAS, the execution of this First Supplemental Indenture has been duly
authorized by the Board of Directors of the Company and all things necessary to
make this First Supplemental Indenture a valid, binding and legal instrument
according to its terms have been done and performed;
NOW THEREFORE, for and in consideration of the premises, the Company
covenants and agrees with the Trustee for the equal and ratable benefit of the
respective holders of the Securities as follows:
ARTICLE I.
ASSUMPTION BY THE COMPANY
1.1 The Company hereby assumes all the obligations of Continental under
the Securities and the Indenture.
1.2 The Indenture is hereby amended so that all references to Continental
shall, where appropriate, be deemed to be referenced to "X.X. Xxxxxx, Inc." and
further amended to reflect such changes in phraseology or form as may be
required thereby. Section 12.02 to the Indenture is hereby amended so that the
references to the Company's address shall be deemed to be 0000 Xxxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxxx, Xxxxx 00000, Attention: Chief Financial Officer.
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ARTICLE II.
CONVERSION
2.1. In accordance with Section 10.17 of the Indenture, the Holder of a
Security may convert such Security into the kind and amount of securities, cash
or other assets which he would have owned immediately after the Merger if the
Holder had converted the Security immediately before the effective date of the
Merger (the "Effective Time"). The conversion rate immediately after the
Effective Time will be equal to the product of the conversion rate immediately
before the Effective Time times the exchange ratio of 2.25, which was determined
in accordance with the procedures specified in the Merger Agreement.
2.2. The conversion rate remains subject to the adjustments provided for
in Article 10 of the Indenture.
ARTICLE III.
FORM OF SECURITY
3.1. In accordance with Article I of this First Supplemental Indenture,
Exhibit A to the Indenture is hereby amended so that all references to
Continental shall, where appropriate, be deemed to be referenced to "X.X.
Xxxxxx, Inc." and further amended to reflect such changes in phraseology or form
as may be required thereby.
3.2. Exhibit A to the Indenture is hereby amended so that the references
to the Company's address shall be deemed to be 0000 Xxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxxx, Xxxxx 00000, Attention: Chief Financial Officer.
3.3. In accordance with Section 10.17 of the Indenture and Articles I and
II of this First Supplemental Indenture, paragraph 8 of Exhibit A to the
Indenture is hereby amended so that, after giving effect to the Merger, the
initial conversion rate of the Securities shall be 94.73625 shares of Common
Stock, par value $.01, of the Company per $1,000 principal amount of the
Securities.
ARTICLE IV.
MISCELLANEOUS PROVISIONS
4.1. This First Supplemental Indenture constitutes a supplement to the
Indenture, and the Indenture and this First Supplemental Indenture shall be read
together and shall have the effect so far as practicable as though all of the
provisions thereof and hereof are contained in one instrument.
4.2. This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall together constitute but one
and the same instrument.
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4.3. In the event that any provision in this First Supplemental Indenture
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
4.4. The article and section headings herein are for convenience only and
shall not affect the construction hereof.
4.5. Any capitalized term used in this First Supplemental Indenture and
not defined herein that is defined in the Indenture shall have the meaning
specified in the Indenture, unless the context shall otherwise require.
4.6. All covenants and agreements in this First Supplemental Indenture by
the Company shall bind its successors and assigns, whether so expressed or not.
4.7. This First Supplemental Indenture shall be deemed to be a contract
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State.
4.8. Except as amended by this First Supplemental Indenture, the terms and
provisions of the Indenture shall remain in full force and effect.
4.9. The Trustee accepts the modifications of the trust effected by this
First Supplemental Indenture, but only upon the terms and conditions set forth
in the Indenture. Without limiting the generality of the foregoing, the Trustee
assumes no responsibility for the correctness of the recitals herein contained
which shall be taken as the statements of the Company and the Trustee shall not
be responsible or accountable in any way whatsoever for or with respect to the
validity or execution or sufficiency of this First Supplemental Indenture and
the Trustee makes no representation with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
X.X. XXXXXX, INC.
By:
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Name:
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Title:
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MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
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Name:
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Title:
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