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AMFAC/JMB HAWAII, INC.
and
AMFAC/JMB MERGERCO, L.L.C.
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of March 1, 1998
To Indenture dated as of March 14, 1989
(as amended and supplemented by the Amendment to
Indenture dated January 17, 1990 and by the
Supplemental Indenture dated June 14, 1993)
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of March 1,
1998 supplements that certain Indenture among AMFAC/JMB HAWAII, INC., a
corporation duly organized and existing under the laws of the State of
Hawaii (herein called the "Company"), AMFAC/JMB MERGERCO, L.L.C.
("Mergerco" or the "Surviving Entity"), THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association duly organized and existing under the laws
of the United States of America, as Trustee (herein called the "Trustee"),
AMFAC PROPERTY DEVELOPMENT CORP., a Hawaii corporation, AMFAC PROPERTY
INVESTMENT CORP., a Hawaii corporation, AMFAC LAND COMPANY, LIMITED, a
Hawaii corporation, KAANAPALI WATER CORPORATION, a Hawaii corporation,
KAANAPALI ESTATE COFFEE, INC., a Hawaii corporation, KEKAHA SUGAR COMPANY,
LIMITED, a Hawaii corporation, THE LIHUE PLANTATION COMPANY, LIMITED, a
Hawaii Corporation, OAHU SUGAR COMPANY, LIMITED, a Hawaii corporation,
PIONEER MILL COMPANY, LIMITED, a Hawaii corporation, PUNA SUGAR COMPANY,
LIMITED, a Hawaii Corporation, X. XXXXXXXX & CO., LTD., a Hawaii
corporation, WAIAHOLE IRRIGATION COMPANY, LIMITED, a Hawaii corporation,
and WAIKELE GOLF CLUB, INC., a Hawaii corporation, as Guarantors of the
Securities, dated as of March 14, 1989 as amended and supplemented by the
Amendment to Indenture dated January 17, 1990 and the Supplemental
Indenture dated June 14, 1993 (such Indenture, as so amended and
supplemented, the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and
delivered to the Trustee the Indenture, providing for the issuance of
Securities (such terms and all other capitalized terms used but not defined
in this Second Supplemental Indenture having the meanings assigned to them
in the Indenture); and
WHEREAS, the Company and its sole shareholder, Northbrook
Corporation, a Delaware corporation ("Northbrook") desire to change the
Company's form of business from a Hawaii corporation to a Hawaii limited
liability company; and
WHEREAS, in order to effect that change in the form of
the Company's business, Northbrook formed Mergerco which is a wholly owned
subsidiary of Northbrook; and
WHEREAS, the Company and Mergerco entered into an
Agreement and Plan of Merger pursuant to which the Company, upon filing of
Articles of Merger with the Director of Commerce and Consumer Affairs of
the State of Hawaii (the "Effective Time"), will be merged with and into
Mergerco and Mergerco will be the surviving entity of such merger; and
WHEREAS, the Surviving Entity as of the Effective Time
will be known as "Amfac/JMB Hawaii, L.L.C."; and
WHEREAS, this Second Supplemental Indenture is being
entered into pursuant to Sections 6.01(2) and 9.01(2) of the Indenture
which provide that a supplemental indenture may be entered into by the
Company and the Trustee without the consent of the Securityholders in order to
1
permit the Company to merge with a Qualified Entity and require that the
person surviving such merger expressly assume by an Indenture supplemental
to the Indenture all obligations of the Company under the Securities and
the Indenture; and
WHEREAS, the Company and Mergerco desire and have
requested the Trustee and the Guarantors to join with them in the execution
and delivery of this Second Supplemental Indenture in order to amend the
Indenture as set forth herein; and
WHEREAS, all things necessary to make this Second
Supplemental Indenture a valid agreement of the Company, the Surviving
Entity, the Trustee and the Guarantors and a valid amendment of and
supplement to the Indenture have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Securityholders, as follows:
ARTICLE I
From and after the Effective Time, the Surviving Entity
agrees to expressly assume all obligations of the Company under the
Securities and the Indenture.
ARTICLE II
From and after the Effective Time, the Guarantors agree
and consent to be bound by the terms of this Second Supplemental Indenture
and further agree that the Guarantors' guarantees and other obligations set
forth in the Indenture remain in full force and effect.
ARTICLE III
This Second Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original; but such counterparts shall together constitute but one and
the same instrument. The parties hereto acknowledge that the
indemnification of the Trustee set forth in Section 8.07 of the Indenture
provides indemnification of the Trustee for its execution and delivery of
this Second Supplemental Indenture.
* * * * * * * *
2
IN WITNESS WHEREOF, AMFAC/JMB Hawaii, Inc. has caused
this Second Supplemental Indenture to be signed in its corporate name and
acknowledged by one of its duly authorized officers, and its corporate seal
to be affixed hereunto or impressed hereon, and the same to be attested by
its Secretary or an Assistant Secretary; AMFAC/JMB MERGERCO, L.L.C. has
caused this Second Supplemental Indenture to be signed in its name and
acknowledged by one of its duly authorized manager and the same to be
attested by a duly authorized manager of AMFAC/JMB MERGERCO, L.L.C.; The
First National Bank of Chicago, Trustee, has caused this Second
Supplemental Indenture to be signed and acknowledged by one of its vice
presidents, has caused its corporate seal to be affixed hereto or impressed
hereon, and the same to be attested by one of its assistant secretaries, as
of the day and year first written above; and the Guarantors have each
caused this Second Supplemental Indenture to be signed in their respective
corporate names and acknowledged by one of their duly authorized officers,
and their corporate seals to be affixed hereunto or impressed hereon, and
the same to be attested by their Secretary or an Assistant Secretary.
AMFAC/JMB HAWAII, INC.
By:_______________________
[Seal] Vice President
Attest:
________________________
Secretary
AMFAC/JMB MERGERCO, L.L.C.
By:________________________
[Seal] Manager
Attest:
________________________
Manager
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:_______________________
[Seal] Vice President
Attest:
________________________
Assistant Secretary
AMFAC PROPERTY DEVELOPMENT CORP.
By:__________________________
[Seal] President
Attest:
_________________________
Assistant Secretary
AMFAC PROPERTY INVESTMENT CORP.
By:__________________________
[Seal] President
Attest:
_________________________
Assistant Secretary
AMFAC LAND COMPANY, LIMITED
By:__________________________
Vice President
[Seal]
Attest:
_________________________
Assistant Secretary
KAANAPALI WATER CORPORATION
By:__________________________
President
[Seal]
Attest:
_________________________
Assistant Secretary
KAANAPALI ESTATE COFFEE, INC.
By:__________________________
President
[Seal]
Attest:
__________________________
Assistant Secretary
KEKAHA SUGAR COMPANY, LIMITED
By:__________________________
President
[Seal]
Attest:
__________________________
Assistant Secretary
THE LIHUE PLANTATION COMPANY,
LIMITED
By:__________________________
President
[Seal]
Attest:
___________________________
Assistant Secretary
OAHU SUGAR COMPANY, LIMITED
By:__________________________
President
[Seal]
Attest:
___________________________
Assistant Secretary
3273124 97425094
PIONEER MILL COMPANY, LIMITED
By:___________________________
President
[Seal]
Attest:
___________________________
Assistant Secretary
PUNA SUGAR COMPANY, LIMITED
By:___________________________
President
[Seal]
Attest:
____________________________
Assistant Secretary
X. XXXXXXXX & CO., LTD.
By:___________________________
President
[Seal]
Attest:
____________________________
Assistant Secretary
WAIAHOLE IRRIGATION COMPANY,
LIMITED
By:__________________________
President
[Seal]
Attest:
___________________________
Assistant Secretary
WAIKELE GOLF CLUB, INC.
By:________________________
Vice President
[Seal]
Attest:
__________________________
Assistant Secretary
