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XCF ACCEPTANCE CORPORATION
CAL FED BANCORP INC.
and
THE CHASE MANHATTAN BANK
as Trustee
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FOURTH 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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FOURTH SUPPLEMENTAL INDENTURE, dated as of December 13, 1996 (the
"Fourth Supplemental Indenture"), among XCF Acceptance Corporation, a
corporation duly organized and existing under the laws of the State of
California ("XCF"), Cal Fed Bancorp Inc., a corporation duly organized and
existing under the laws of the State of Delaware ("Bancorp"), 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 Second Supplemental
Indenture dated as of December 13, 1996 and the Third Supplemental Indenture
dated as of December 13, 1996 (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, pursuant to the terms of the Indenture the Securities were
convertible into shares of Bancorp common stock prior to the execution of this
Fourth Supplemental Indenture;
WHEREAS, pursuant to an Amended and Restated Agreement and Plan of
Merger dated as of July 27, 1996 (the "Acquisition Agreement"), by and among
First Nationwide Holdings Inc., Bancorp and California Federal Bank, A Federal
Savings Bank ("California Federal"), it is contemplated that CFB Holdings,
Inc., a subsidiary of First Nationwide Holdings Inc., will be merged with and
into Bancorp (the "Bancorp Merger"), with Bancorp being the surviving
corporation, as a result of which each share of the common stock, par value
$1.00 per share, of Bancorp (the "Bancorp Common Stock") will be converted
into $23.50 in cash (without interest) and one-tenth of a Secondary
Participation Interest (as defined in the Acquisition Agreement); provided,
however, that no fractional Secondary Participation Interests shall be issued
and, in lieu of such a fractional interests, holders of Bancorp Common Stock
will receive a cash payment in an amount determined in accordance with the
Acquisition Agreement;
WHEREAS, on October 18, 1996, the Boards of Directors of XCF and
Bancorp each authorized the execution and delivery of this Fourth Supplemental
Indenture;
WHEREAS, pursuant to Section 801(5) of the Indenture, the Trustee is
permitted to enter into a supplemental indenture, without obtaining the consent
of the Holders of the Securities, "to make provisions with respect to the
conversion rights of Holders of Securities pursuant to Section 1311" of the
Indenture; and
WHEREAS, Section 1311 of the Indenture requires that, as a result of
the Bancorp Merger, the Securities become convertible into the consideration
to be issued in the Bancorp Merger in consideration of Bancorp common stock;
NOW, THEREFORE, XCF and Bancorp 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
Effectiveness
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This Agreement shall become effective only upon consummation of the
Bancorp Merger.
ARTICLE TWO
Amendments
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Section 2.1. Conversion into Cash and Secondary Participation
Interests. The Holder of each Security outstanding after the Bancorp Merger
shall have the right, during the period such Security shall be convertible
as specified in Section 1301 of the Indenture, to convert such Security
only into the amount of cash (without interest), payable by Bancorp, and
number of Secondary Participation Interests, issuable by Bancorp, receivable
in the Bancorp Merger by a holder of the number of shares of common stock,
par value $1.00 per share, of Bancorp into which such Security might have
been converted immediately prior to the Bancorp Merger; provided, however,
that no fractional Secondary Participation Interests shall be issued to any
Holder of Securities and, in lieu of such a fractional interest, a Holder
who converts a Security shall receive from Bancorp a cash payment in an
amount determined in accordance with the Acquisition Agreement.
Section 2.2. Definitions. Section 101 of the Indenture is hereby
amended to add the following definition in alphabetical order:
"Acquisition Agreement" means that Amended and Restated Agreement
and Plan of Merger dated as of July 27, 1996, by and among First Nationwide
Holdings Inc., Cal Fed Bancorp Inc. and California Federal Bank, A Federal
Savings Bank.
"Secondary Participation Interest" has the meaning set forth in the
Acquisition Agreement.
ARTICLE THREE
Miscellaneous Provisions
Section 3.1. Interpretation. This Fourth Supplemental Indenture is a
supplemental indenture pursuant to Section 801 of the Indenture. Upon execution,
delivery and effectiveness pursuant to Article One of this Fourth Supplemental
Indenture, the Indenture shall be modified and amended in accordance with this
Fourth 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 Fourth Supplemental Indenture will
control. The Indenture, as modified and amended by this Fourth 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
2
conditions contained in the securities and those contained in the Indenture,
as modified and amended by this Fourth Supplemental Indenture, the provisions
of the Indenture, as modified and amended by this Fourth Supplemental
Indenture, shall control.
Section 3.2. Successors and Assigns. All the covenants, stipulations,
promises and agreements in this Fourth Supplemental Indenture made by or on
behalf of XCF, Bancorp or the Trustee, shall bind and inure to the benefit
of their respective successors and assigns.
Section 3.3. Counterparts. This Fourth 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 3.4. 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 3.5. 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 Bancorp, and
the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Fourth
Supplemental Indenture or of the Securities, as amended hereby, or coupons.
Section 3.6. Governing Law. This Fourth Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State
of New York.
3
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
Attest:
/s/ Xxxxx Xxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxx
Title: Secretary
CAL FED BANCORP INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Secretary
Attest:
/s/ Xxxxx Xxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President and
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------
Name: Xxxxxx Deck
Title: Senior Trust Officer
Attest:
----------------------
Name:
Title:
4
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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
CAL FED BANCORP INC.
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Secretary
Attest:
----------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President and
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Xxxxxx Deck
-----------------------------
Name: Xxxxxx Deck
Title: Senior Trust Officer
Attest:
/s/ Xxxxx X. XxXxxxxx
----------------------
Name: Xxxxx X. XxXxxxxx
Title: Senior Trust Officer
4
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 Exec.
VP & Secretary of Cal Fed Bancorp Inc., 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
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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, Xxxxxxxx, XX; that she is Sr. VP &
Asst. Sec. of Cal Fed Bancorp Inc., 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 New York )
)ss.
COUNTY OF New York )
On the 13th day of December, 1996, before me, personally came
Xxxxxx 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 signs 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 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 signs 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]
