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XCF ACCEPTANCE CORPORATION
CALIFORNIA FEDERAL BANK, A FEDERAL SAVINGS BANK
and
THE CHASE MANHATTAN BANK,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of December 13, 1996
to
INDENTURE
Dated as of February 15, 1986
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6 1/2% Convertible Subordinated Debentures
Due 2001
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SECOND SUPPLEMENTAL INDENTURE, dated as of December 13, 1996
(the "Second Supplemental Indenture"), among XCF Acceptance Corporation, a
corporation duly organized and existing under the laws of the State of
California ("XCF"), California Federal Bank, A Federal Savings Bank (the
"Bank"), and The Chase Manhattan Bank (formerly Chemical Bank, successor by
merger to Manufacturers Hanover Trust Company), a New York corporation, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, XCF (as successor by merger to CalFed Inc., a
Delaware corporation) has duly authorized, executed and delivered to the
Trustee that certain indenture dated as of February 15, 1986, as amended by
the First Supplemental Indenture dated as of December 16, 1992 (the
"Indenture"), pursuant to which the 6 1/2% Convertible Subordinated Debentures
Due 2001 (the "Securities") of XCF were issued (all capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in
the Indenture);
WHEREAS, in December 1992, the Bank and its then parent
company, CalFed Inc., undertook a corporate restructuring (the "1992
Restructuring") pursuant to which CalFed Inc. was merged into XCF, a
subsidiary of the Bank, and thus ceased to be the holding company for the
Bank;
WHEREAS, the Offering Circular and Consent Solicitation
dated November 16, 1992 (the "Offering Circular"), which was distributed to
holders of the Securities in connection with certain amendments to the
Indenture necessary to effect the 1992 Restructuring, stated that, upon
consummation of the 1992 Restructuring, the Securities remaining outstanding
would be convertible into shares of the Bank's common stock and that
antidilution adjustments with respect to the conversion price for the
Securities would be made based on certain changes in the outstanding shares of
the Bank's common stock;
WHEREAS, in compliance with the express language of Sections
101 and 1311 of the Indenture, upon consummation of the 1992 Restructuring,
XCF, as the successor to CalFed Inc., was substituted as the "Company" for all
purposes of the Indenture, including the antidilution and other conversion
provisions contained in Article Thirteen of the Indenture, but the Securities
became convertible into the common stock of the Bank;
WHEREAS, such compliance with Sections 101 and 1311 of the
Indenture in connection with the 1992 Restructuring has led to the nonsensical
result that, although the Securities are convertible into Bank common stock,
the antidilution adjustments to the conversion price of the Securities under
Section 1304 of the Indenture are tied to changes in the outstanding capital
stock of XCF, a subsidiary of the Bank, contrary to the description and intent
set forth in the Offering Circular;
WHEREAS, the substitution of XCF as the "Company" for
purposes of Section 1311 of the Indenture when the Securities are convertible
into the common stock of the Bank, not XCF, renders Section 1311 inoperative
as to successive merger or acquisition transactions of the Bank, which is
inconsistent with the last sentence of Section 1311, which states that the
provisions in
case of consolidations or mergers or sale of assets "shall similarly apply to
successive consolidations, mergers, sales or transfers;"
WHEREAS, the substitution of XCF for the term "Company" in
the antidilution and other conversion provisions of Article Thirteen of the
Indenture is inconsistent with and contrary to the intent of Article Thirteen
of the Indenture, the intent of which was evidenced by the statements made to
holders of the Securities in the Offering Circular;
WHEREAS, after consummation of the 1992 Restructuring, the
obligor on the Securities was no longer the issuer of the common stock into
which the Securities were convertible and as a result the inconsistencies and
ambiguities stated in the preceding recitals have arisen, reflecting the fact
that the Indenture fails to anticipate circumstances in which the "Company"
merges into a subsidiary of another entity while the Securities become
convertible into the parent of such subsidiary;
WHEREAS, pursuant to Section 801(6) of the Indenture, the
Trustee is permitted to enter into a supplemental indenture, without obtaining
the consent of the holders of the Securities, "to cure any ambiguity, to
correct or supplement any provision [therein] which may be inconsistent with
any other provision [therein], or to make any other provisions with respect to
matters or questions arising under [the] Indenture, provided such action . . .
shall not adversely affect the interests of the Holders of the Securities . . .
in any material respect;"
WHEREAS, the inconsistencies contained in Article Thirteen
of the Indenture would be cured if references to the "Company" in such Article
were deemed to be references to the Bank or its successors, as the issuer of
the Common Stock into which the Securities were convertible, rather than XCF,
as the issuer of the Securities; and
WHEREAS, on October 18, 1996, the Boards of Directors of XCF
and the Bank each authorized the execution and delivery of this Second
Supplemental Indenture;
NOW, THEREFORE, XCF and the Bank each covenants and agrees
with the Trustee, for the equal and proportionate benefit and security of
those who shall hold the Securities from time to time, as hereinafter set
forth.
ARTICLE ONE
Amendments
Section 1.1 Amendments to Section 101
The definition of "Company" set forth in Section 101 of the
Indenture is hereby amended and restated to read as follows:
"Company" means the Person named as the "Company"
in the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor Person; provided however, that for
purposes of (x) Article Thirteen of this Indenture, (y) the
definition of "Common Stock" contained in Section 101 of
this Indenture and (z) all other
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defined terms used in, or with respect to, Article Thirteen
of this Indenture, the defined term "Company" means
California Federal Bank, A Federal Savings Bank, until the
occurrence of a transaction contemplated by Section 1311 of
the Indenture, at which time all such references to the
"Company" shall be deemed references to the corporation or
other entity that, pursuant to Section 1311 of this
Indenture, becomes the issuer of the Common Stock or other
securities into which the Securities become convertible in
accordance with Section 1311 of this Indenture.
ARTICLE TWO
Miscellaneous Provisions
Section 2.1 Interpretation. This Second Supplemental
Indenture is a supplemental indenture pursuant to Section 801 of the
Indenture. Upon execution and delivery of this Second Supplemental Indenture,
the Indenture shall be modified and amended in accordance with this Second
Supplemental Indenture, and all the terms and conditions of both shall be read
together as though they constitute one instrument, except that, in case of
conflict, the provisions of this Second Supplemental Indenture will control.
The Indenture, as modified and amended by this Second Supplemental Indenture,
is hereby ratified and confirmed in all respects and shall bind every Holder
of Securities. In case of conflict between the terms and conditions contained
in the Securities and those contained in the Indenture, as modified and
amended by this Second Supplemental Indenture, the provisions of the
Indenture, as modified and amended by this Second Supplemental Indenture,
shall control.
Section 2.2 Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Second Supplemental Indenture
made by or on behalf of XCF, the Bank or the Trustee, shall bind and inure to
the benefit of their respective successors and assigns.
Section 2.3 Counterparts. This Second Supplemental Indenture
may be executed in any number of counterparts, and all such counterparts taken
together shall be deemed to constitute one and the same agreement.
Section 2.4 Title and Section Headings. The titles of the
Articles and the Section headings are for convenience only and shall not
affect the construction hereof.
Section 2.5 Recitals. The recitals contained herein and in
the Securities, as amended hereby, (except the Trustee's certificate of
authentication) shall be taken as the statements of XCF and the Bank, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Second Supplemental
Indenture or of the Securities, as amended hereby, or coupons.
Section 2.6 Governing Law. This Second Supplemental
Indenture shall be governed by and construed in accordance with the laws of
the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first written above.
XCF ACCEPTANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
Attest:
/s/ Xxxxx Xxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxx
Title: Secretary
CALIFORNIA FEDERAL BANK, A FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Secretary
Attest:
/s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President and Assistant Secretary
THE CHASE MANHATTAN BANK, as Trustee
By:
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Name: Xxxxxx Deck
Title: Senior Trust Officer
Attest:
-------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first written above.
XCF ACCEPTANCE CORPORATION
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
Attest:
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: Secretary
CALIFORNIA FEDERAL BANK, A FEDERAL
SAVINGS BANK
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Secretary
Attest:
-------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President and Assistant
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Xxxxxx Deck
----------------------------------
Name: Xxxxxx Deck
Title: Senior Trust Officer
Attest:
/s/ Xxxxx X. XxXxxxxx
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Name: Xxxxx X. XxXxxxxx
Title: Senior Trust Officer
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STATE OF California )
) ss.
COUNTY OF Los Angeles )
On the 13th day of December 1996, before me, personally came
Xxxxxxx X. Xxxxxx to me known, who, being by me duly sworn, did depose and say
that he resides at 0000 Xxxxxxxx Xx., Xxxxxxxx XX; that he is Executive VP &
Secretary of California Federal Bank, A Federal Savings Bank, one of the
parties described in and who executed the above instrument; and that he signs
his name thereto by authority of the Board of Directors of said Company.
WITNESS my hand and official seal.
/s/ Xxxxxxx Xxxx XxxXxx
-----------------------------------
Notary Public in and for said State
[Seal]
STATE OF California )
) ss.
COUNTY of Los Angeles )
On the 13th day of December 1996, before me, personally came
Xxxxx X. Xxxxxxxxx to me known, who, being by me duly sworn, did depose and
say that she resides at 000 X. Xxxxxxxxx Xxx., Xxxxxxxx XX; that she is Senior
Vice President of California Federal Bank, A Federal Savings Bank, one of the
parties described in and who executed the above instrument; and that he signs
his name thereto by authority of the Board of Directors of said Company.
WITNESS my hand and official seal.
/s/ Xxxxxxx Xxxx XxxXxx
-----------------------------------
Notary Public in and for said State
[Seal]
0
XXXXX XX Xxx Xxxx )
) ss.
COUNTY OF New York )
On the 13th day of December 1996, before me, personally came
Xxxx X. Deck to me known, who, being by me duly sworn, did depose and say that
he resides at Great Neck, New York; that he is Senior Trust Officer of The
Chase Manhattan Bank, one of the parties described in and who executed the
above instrument; and that he signed his name thereto by authority of the
Board of Directors of said Company.
WITNESS my hand and official seal.
/s/ Xxxxx Xxxxx
-----------------------------------
Notary Public in and for said State
[Seal]
STATE OF New York )
) ss.
COUNTY OF New York )
On the 13th day of December 1996, before me, personally came
Xxxxx X. XxXxxxxx to me known, who, being by me duly sworn, did depose and say
that he resides at Bayside, New York; that he is Senior Trust Officer of The
Chase Manhattan Bank, one of the parties described in and who executed the
above instrument; and that he signed his name thereto by authority of the
Board of Directors of said Company.
WITNESS my hand and official seal.
/s/ Xxxxx Xxxxx
-----------------------------------
Notary Public in and for said State
[Seal]
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