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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) March 3, 1998
AMFAC/JMB HAWAII, L.L.C.
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(Exact Name of Registrant as Specified in its Charter)
Hawaii
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(State or Other Jurisdiction of Incorporation)
33-24180 36-3109397
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(Commission File Number) (I.R.S. Employer Identification No.)
900 North Michigan Avenue, Chicago, Illinois 60611-1581
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(Address of Principal Executive Offices) (Zip Code)
(312) 915-2420
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(Registrant's Telephone Number, Including Area Code)
Amfac/JMB Hawaii, Inc.
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
Conversion to Limited Liability Company
Amfac/JMB Hawaii, L.L.C., a Hawaii limited liability company (the
"Company") is the successor to Amfac/JMB Hawaii, Inc. ("A/J Hawaii")
pursuant to the merger described below which was consumated on March 3,
1998. On March 3, 1998, A/J Hawaii was merged (the "Merger") with and into
the Company (which was then named Amfac/JMB Mergerco L.L.C.) pursuant to an
Agreement and Plan of Merger dated February 27, 1998 (the "Merger
Agreement") by and between A/J Hawaii and the Company. The Company was the
surviving entity in the Merger. The Merger was consummated to change the
form of A/J Hawaii's business from a corporation to a limited liability
company for tax planning purposes. The Company was a nominally capitalized
limited liability company which was formed on December 24, 1997, solely for
the purpose of effecting the Merger. The Company succeeded to all the
assets and liabilities of A/J Hawaii in accordance with the Hawaii Business
Corporation Act and the Hawaii Uniform Limited Liability Company Act. In
addition, A/J Hawaii, the Company, The First National Bank of Chicago (the
"Trustee") and various guarantors entered into a Second Supplemental
Indenture dated as of March 1, 1998, pursuant to which the Company
expressly assumed all obligations of A/J Hawaii under the Indenture dated
as of March 14, 1989, as amended (the "Indenture") by and among A/J Hawaii,
the Trustee and the guarantors named therein and the Certificates of Land
Appreciation Notes due 2008 Class A (the "Class A COLAs") and the
Certificates of Land Appreciation Notes due 2008 Class B (the "Class B
COLAs" and collectively with the Class A COLAs, the "COLAs"). The Merger
did not require the consent of the holders of the COLAs under the terms of
the Indenture. The Company has succeeded to A/J Hawaii's reporting
obligations under the Securities Exchange Act of 1934, as amended.
Tender Offer to Purchase COLAs
On January 30, 1998, Amfac Finance Limited Partnership ("Amfac
Finance"), an Illinois limited partnership and an affiliate of the Company
extended a Tender Offer to Purchase (the "Tender Offer") up to $65,421,000
Principal amount of separately certificated Class B COLAS ("Separate Class
B COLAs") for cash at a unit price of $375 to be paid by Amfac Finance on
each Separate Class B COLA on or about March 24, 1998. The maximum cash to
be paid under the Tender Offer is $49,065,750 (130,842 Separate Class B
COLAs at a unit price of $375 for each separate Class B COLA). The Tender
Offer will not reduce the outstanding indebtedness of the Company. The
Separate Class B COLAs to be purchased by Amfac Finance pursuant to Tender
Offer will remain outstanding pursuant to the terms of the Indenture.
Except as provided in the last sentence of this paragraph, Amfac Finance
will be entitled to the same rights and benefits of any other holder of
Separate Class B COLAs, including having the ability to have its Separate
Class B COLAs repurchased on June 1, 1999 in accordance with the terms of
the Indenture. Amfac Finance has not yet determined whether it will require
that its Separate Class B COLAs be repurchased. Because Amfac Finance is an
affiliate of the Company, Amfac Finance will not be able to participate in
determining whether the holders of the required principal amount of debt
under the Indenture have concurred in any direction, waiver or consent
under the terms of the Indenture.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
Exhibit
No. Document Description
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2.1 Agreement and Plan of Merger by and between Amfac/JMB
Hawaii, Inc. and Amfac/JMB Mergerco, L.L.C. dated as of
February 27, 1998.
4.1 Second Supplement to the Indenture dated as of March 1, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
AMFAC/JMB HAWAII, L.L.C.
(Registrant)
Dated: March 3, 1998 By:______________________
Name: Edward J. Kroll
Title: Vice President
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INDEX TO EXHIBITS
Exhibit
No. Document Description
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2.1 Agreement and Plan of Merger by and between Amfac/JMB
Hawaii, Inc. and Amfac/JMB Mergerco, L.L.C. dated as of
February 27, 1998.
4.1 Second Supplement to the Indenture dated as of March 1, 1998.
AGREEMENT AND PLAN OF MERGER
by and between
AMFAC/JMB HAWAII, INC.
and
AMFAC/JMB MERGERCO, L.L.C.
Now on this 27th day of February 1998 Amfac/JMB Hawaii, Inc.
("Amfac"), a Hawaii corporation and wholly-owned subsidiary of Northbrook
Corporation, a Delaware corporation ("Northbrook"), and Amfac/JMB Mergerco,
L.L.C., a Hawaii limited liability company of which Northbrook is the sole
member ("Mergerco") have entered into the following Agreement and Plan of
Merger (the "Agreement") pursuant to Hawaii Revised Statutes ("HRS")
Section 415-75.6 and pursuant to HRS Section 428-904.
WHEREAS, the Board of Directors of Amfac has deemed it advisable
that Amfac merge with and into Mergerco in order to change its form of
business from a corporation to a limited liability company pursuant to the
terms set forth in this Agreement; and
WHEREAS, the merger is intended to qualify as a tax-free
liquidation pursuant to Section 332 of the Internal Revenue Code of 1986,
as amended; and
WHEREAS, this Agreement has been approved by written consent of
the sole member of Mergerco, the sole shareholder of Amfac and the board of
directors of Amfac; and
NOW, THEREFORE, in consideration of the mutual covenants,
agreements and provisions hereinafter contained, Amfac and Mergerco do
hereby prescribe the terms and conditions of the merger and of carrying the
same into effect as follows:
FIRST: Pursuant to the provisions of HRS Chapters 415 and 428,
Amfac shall be merged with and into Mergerco with Mergerco being the
surviving entity (the "Merger"). The Merger shall become effective upon the
later of (i) the filing of articles of merger with the Director of the
Department of Commerce and Consumer Affairs of the State of Hawaii pursuant
to HRS Chapters 415 and 428 or (ii) the date and time (if any) specified in
the articles of merger (the "Effective Time"). At the Effective Time,
Mergerco shall continue its existence as a limited liability company formed
under the laws of the State of Hawaii (sometimes hereinafter referred to as
the "surviving entity"). The separate existence of Amfac shall cease at the
Effective Time.
SECOND: At the Effective Time, the Articles of Organization and
Operating Agreement of Mergerco as in effect immediately prior to the
Merger shall continue in full force and effect as the Articles of
Organization and Operating Agreement of the surviving entity except that
the name of the surviving entity shall be Amfac/JMB Hawaii, L.L.C. The
street address of the surviving entity's principal place of business shall
be 900 N. Michigan Avenue, Chicago, Illinois 60611.
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Article 1 of the Articles of Organization of Mergerco is amended by changing
the name to "Amfac/JMB Hawaii, L.L.C."
THIRD: At the Effective Time, the managers of Mergerco immediately
prior to the Effective Time shall be the managers of the surviving entity.
FOURTH: At the Effective Time, all of the issued and outstanding
capital stock of Amfac immediately prior to the Effective Time and any
capital stock of Amfac held in its treasury, shall by virtue of the Merger
and without any action on the part of the holder thereof cease to be
outstanding, be canceled and retired without payment of any consideration.
FIFTH: At the Effective Time, all the issued and outstanding
membership interests of Mergerco immediately prior to the Effective Time
shall become all the issued and outstanding membership interests in the
surviving entity.
SIXTH: This Agreement may be terminated by either party prior to
the filing of the Articles of Merger with the Director of the Department of
Commerce and Consumer Affairs of the State of Hawaii.
SEVENTH: Unless otherwise waived by both parties hereto, the
Articles of Merger shall not be filed with the Director of the Department
of Commerce and Consumer Affairs of the State of Hawaii pursuant to HRS
Chapters 415 and 428 until such time as Amfac shall have obtained consents
necessary to transfer all rights, title and interest of Amfac in Amfac's
material contracts to the surviving entity.
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IN WITNESS WHEREOF, the parties to this Agreement have caused
these presents to be executed by an authorized officer or manager of each
party hereto.
AMFAC /JMB HAWAII, INC.
By:____________________________
Title:
AMFAC/JMB MERGERCO, L.L.C.
By:_____________________________
Title:
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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, H. HACKFELD & 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
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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
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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
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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
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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
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PIONEER MILL COMPANY, LIMITED
By:___________________________
President
[Seal]
Attest:
___________________________
Assistant Secretary
PUNA SUGAR COMPANY, LIMITED
By:___________________________
President
[Seal]
Attest:
____________________________
Assistant Secretary
H. HACKFELD & CO., LTD.
By:___________________________
President
[Seal]
Attest:
____________________________
Assistant Secretary
WAIAHOLE IRRIGATION COMPANY,
LIMITED
By:__________________________
President
[Seal]
Attest:
___________________________
Assistant Secretary
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WAIKELE GOLF CLUB, INC.
By:________________________
Vice President
[Seal]
Attest:
__________________________
Assistant Secretary
