--------------------------------------
CALFED INC.
XCF ACCEPTANCE CORPORATION
CALIFORNIA FEDERAL BANK, A FEDERAL SAVINGS BANK
and
CHEMICAL BANK,
as Trustee
-----------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 16, 1992
to
INDENTURE
Dated as of February 15, 1986
-----------------------
U.S. $125,000,000
6 1/2% Convertible Subordinated Debentures
Due 2001
---------------------------------------
First Supplemental Indenture dated as of December 16, 1992
among CalFed Inc., a Delaware corporation (the "Company"), XCF Acceptance
Corporation, a California corporation ("XCF Acceptance Corporation"),
California Federal Bank, a Federal Savings Bank (formerly known as California
Federal Savings and Loan Association; the "Bank"), and Chemical Bank, a
banking corporation organized under the laws of the State of New York and
successor by merger to Manufacturers Hanover Trust Company, as trustee (the
"Trustee").
R E C I T A L S O F T H E C O M P A N Y
- - - - - - - - - - - - - - - - - - - -
WHEREAS, the Company has duly authorized, executed and
delivered to the Trustee that certain indenture dated as of February 15, 1986
(the "Indenture") pursuant to which the Company's 6 1/2% Convertible
Subordinated Debentures Due 2001 (the "Securities") were issued (all
capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Indenture);
WHEREAS, as part of a restructuring (the "Restructuring"),
the Company (i) has made an offer (the "Offer") to the holders (the "Holders")
of Securities to exchange their Securities for shares of Classes B, C and D of
common stock, $.20 per value (the "Bank Stock"), of the Bank, and 10%
Subordinated Debentures due 2003 (the "Bank Debentures") of the Bank and (ii)
will merge (the "Merger"), after consummation of the Offer, with and into XCF
Acceptance Corporation, a wholly owned subsidiary of the Bank, pursuant to
which each outstanding share of common stock, $1.00 par value (the "Common
Stock"), of the Company will automatically be converted into one share of
Class A Bank Stock, in each case as fully described in the Offering Circular
and Consent Solicitation dated November 16, 1992 of the Company;
WHEREAS, in connection with the Restructuring of the
Company, the Board of Directors of the Company has determined that it is in
the best interests of the Company (i) to amend the Indenture (the
"Amendments") to, (A) defer until February 20, 2000 the February 20, 1993
Redemption Date with respect to the right of Holders to require the Company to
purchase their Securities for 123% of the face amount of the Securities, (B)
eliminate the covenant that requires, with certain exceptions, that the
Company own directly or indirectly more than 80% of the outstanding shares of
capital stock having voting power for the election of directors of the Bank,
(C) extend the condition precedent to the Company's ability to redeem the
Securities at its option prior to February 20, 1993, which condition provides,
in essence, that the Company can only redeem the Securities at its option if
during a certain period of time prior to
any such redemption the closing market price of the Common Stock of the
Company is at least 130% of the conversion price under the Indenture, and (D)
make conforming changes to the Indenture with respect to the foregoing
amendments, and (ii) to provide for the assumption of the Indenture, as
amended, by XCF Acceptance Corporation upon the effectiveness of the Merger;
WHEREAS, Holders of at least 90% in aggregate principal
amount of the Outstanding Securities, constituting a majority in aggregate
principal amount of the Securities not owned by the Company or its Affiliates,
have tendered duly executed consents to the Amendments by Act of such Holders
delivered to the Company and the Trustee, and such consents have not been
withdrawn;
WHEREAS, the Board of Directors adopted a Board Resolution
on December 16, 1992 authorizing the Company to enter into a supplemental
indenture to effect the Amendments;
WHEREAS, pursuant to Section 801 of the Indenture, without
the consent of any Holders of Securities or coupons, the Company, when
authorized by a Board Resolution, and the Trustee at any time and from time to
time, may enter into one or more indentures supplemental to the Indenture for,
among other purposes, to evidence the succession of another corporation to the
Company and the assumption by such successor of the covenants of the Company
in the Securities and in the coupons and to make provision with respect to the
conversion rights of Holders of Securities pursuant to Section 1311 of the
Indenture; and
WHEREAS, pursuant to Section 802 of the Indenture, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental to the
Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or modifying in
any manner the rights of the Holders of the Securities or coupons under the
Indenture;
NOW, THEREFORE, the Company 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.
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ARTICLE ONE
Effectiveness
-------------
The Amendments set forth in this First Supplemental
Indenture shall become effective, as of the time that the Company and the
Exchange Agent certify to the Trustee that the Holders of at least 90% in
aggregate principal amount of the Outstanding Securities, constituting a
majority in aggregate principal amount of the Securities not owned by the
Company or its Affiliates, have tendered duly executed consents to the
Amendments and such consents have not been withdrawn, only when the Company
has notified the Trustee that the Offer is consummated and (i) the Company has
irrevocably deposited with Chemical Bank, as exchange agent for the Offer (the
"Exchange Agent"), and has given the Exchange Agent irrevocable instructions
to distribute, the shares of Bank Stock and the Bank Debentures to be issued
to Holders for the Securities tendered pursuant to the Offer and (ii) there
shall not exist, to the actual knowledge of the Trustee, any legal prohibition
on the distribution of such Bank Stock and Bank Debentures by the Exchange
Agent.
ARTICLE TWO
Amendments
----------
Section 2.1 Amendments to Section 202.
(a) The second full paragraph of the Form of Reverse of the
Securities set forth in Section 202, "Forms of Definitive Securities," of the
Indenture is hereby amended and restated to read as follows:
The Securities are subject to redemption at the
option of the Company (1) at any time after the expiration
of 30 days following the Exchange Date, as a whole or in
part, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed during the
12-month period beginning February 20 of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ----------- ----- -----------
1986.................... 106% 1989............ 103%
1987.................... 105% 1990............ 102%
1988.................... 104% 1991............ 101%
and thereafter at a Redemption Price equal to 100% of
the principal amount; and (2) under
3
the circumstances described in the next two succeeding
paragraphs at a Redemption Price equal to 100% of the
principal amount, together in the case of any such
redemption under clause (1) or (2) of this sentence with
accrued interest to the Redemption Date; provided, however,
that interest installments on Bearer Securities whose Stated
Maturity is on or prior to such Redemption Date will be
payable only upon presentation and surrender of coupons for
such interest (at an office or agency outside the United
States except as herein provided otherwise), and provided,
further, that interest installments on Registered Securities
whose Stated Maturity is on or prior to such Redemption Date
will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of
business on the relevant Regular Record Date referred to on
the face hereof, all as provided in the Indenture.
Notwithstanding the foregoing, the Company may not, prior to
February 20, 2000, redeem any Securities pursuant to clause
(1) of the next preceding sentence unless the Closing Market
Price Per Share (as defined in the Indenture) of the Common
Stock on each day on which there was such a price within the
30 days immediately preceding the fifteenth day prior to the
initial publication of the notice of such redemption is at
least 130% of the Conversion Price in effect at the close of
business on such day. Partial redemptions must be in an
amount not less than U.S. $1,000,000 principal amount of
Securities.
(b) The fifth full paragraph of the Form of Reverse of the
Securities set forth in Section 202, "Forms of Definitive Securities," of the
Indenture is hereby amended and restated to read as follows:
Subject to and upon compliance with the provisions
of the Indenture (unless previously redeemed by the Company
and notwithstanding any prior call for redemption at the
election of the Company on a Redemption Date on or after
February 20, 2000), this Security is subject to redemption
on February 20, 2000, at the election of the Holder,
exercisable on or before January 20, 2000, but not prior to
December 20, 1999, at a Redemption Price equal to 123% of
the principal amount to be redeemed, plus accrued
4
interest to the Redemption Date. For this Security to be
redeemed at the election of the Holder hereof, the Company
must receive at the office of one of the Paying and
Conversion Agents appointed by the Company on or after
December 20, 1999 until and including, but not after, the
close of business on January 20, 2000, this Security [If
Bearer Security --, together with all coupons maturing after
the Redemption Date,] accompanied by written notice to the
Company (which shall be substantially in the form of
optional redemption notice hereon) that the Holder hereof
instructs the Company to redeem this Security [If Registered
Security --, or if less than the entire amount hereof is to
be redeemed, the portion hereof to be redeemed]. The Holder
of a Registered Security may elect redemption by the Company
of such Security in the principal amount of U.S. $5,000 or
an integral multiple thereof. The Holder of a Bearer
Security may elect redemption by the Company of such
Security as a whole but not in part. Such form of notice
duly received shall be irrevocable; provided, however, that
Holders of Securities who provide such optional notice of
redemption shall retain the right to require such Securities
to be converted into Common Stock on or prior to February
20, 2000, provided that notice of conversion and the
Holder's non-transferable receipt of deposit from the Paying
and Conversion Agent representing such Securities are
delivered on or prior to the close of business on such
conversion date to the Paying and Conversion Agent holding
such Securities. In the event such Securities are converted
on (but not prior to) February 20, 2000, the Holders of the
appurtenant coupons the Stated Maturity of which is February
20, 2000 shall be entitled to receive the interest payable
on such Securities on such date. The Company shall give the
Holders of the Securities not less than 75 days nor more
than 100 days notice prior to February 20, 2000 advising
such Holders of the Redemption Date for redemption at the
election of Holders.
(c) The italicized Note of the Form of Notice of Redemption
at Holder's Option set forth in Section 202, "Forms of Definitive Securities,"
of the Indenture is hereby amended and restated to read as follows:
5
Note: Exercise of the option to elect redemption
is irrevocable, except that Holders who
provide the foregoing notice retain the
right to require the Securities tendered
herewith to be converted, provided that
notice to such effect and the Holder's
nontransferable receipt from a Paying and
Conversion Agent representing such
Securities are delivered on or prior to
February 20, 2000, to the Paying and
Conversion Agent holding the tendered
Securities to be converted. In the event
tendered Securities are converted on (but
no prior to) February 20, 2000, the Holder
[If Bearer Security - of the coupon the
stated Maturity of which is such date] will
be entitled to receive the interest payable
[If Registered Security - on such
Securities] on that date.
Section 2.2 Amendment to Section 1009.
Section 1009, "Limitation on Disposition of Stock of
California Federal," of the Indenture is hereby deleted in its entirety.
Section 2.3 Amendments to Article Twelve.
(a) Section 1201, "Redemption at Option of Holders," of the
Indenture is hereby amended and restated to read as follows:
Notwithstanding any contrary provisions set forth
in Securities authenticated and delivered prior to [date of
this First Supplemental Indenture], 1992, the Securities
shall be redeemed by the Company at the option of the
Holders thereof, as a whole or in part, under the conditions
and at the Redemption Price for redemption at the option of
Holders specified in the forms of Securities set forth in
Section 202 together with accrued interest to the Redemption
Date. Upon the deposit of any Security with a Paying and
Conversion Agent together with a duly signed and completed
Notice of Redemption at Holder's Option, all in accordance
with the provisions contained in the forms of Securities set
forth in Section 202, the Holder of such Security shall be
entitled to receive from such Paying and Conversion Agent a
nontransferable receipt of deposit evidencing such deposit.
Provided
6
that such Securities are surrendered for redemption at the
option of the Holder in accordance with the terms hereof,
such Securities shall be redeemed on the Redemption Date and
at the Redemption Price specified for redemption at the
option of the Holder, notwithstanding the fact that such
Securities have been called for redemption at the option of
the Company on a Redemption Date on or after (but not
before) February 20, 2000.
(b) Section 1203, "Notice of Redemption Date," of the
Indenture is hereby amended and restated to read as follows:
Notwithstanding any contrary provisions set forth
in Securities authenticated and delivered prior to [date of
this First Supplemental Indenture], 1992, notice of the
February 20, 2000 Redemption Date shall be given by the
Company not less than 75 nor more than 100 days prior to the
February 20, 2000 Redemption Date to each Holder of
Securities in accordance with Section 105.
The notice as to the Redemption Date shall state:
(1) the Redemption Date;
(2) the Redemption Price and accrued
interest to the Redemption Date;
(3) the place or places where such
Securities, together in the case of Bearer
Securities with all coupons appertaining thereto
maturing after February 20, 2000, are to be
surrendered for payment of the Redemption Price and
such accrued interest and the date by which
Securities must be so surrendered in order to be
redeemed;
(4) that exercise of the option to elect
redemption is irrevocable, except that Holders who
provide the option notice will retain the right to
require tendered Securities to be converted,
provided that notice to such effect and the
Holder's nontransferable receipt from the Paying
and Conversion Agent representing such Securities
are delivered on or prior to February 20, 2000 to
the Paying and Conversion Agent holding the
tendered Securities to be
7
converted and the other requirements of
Article Thirteen are met;
(5) that in the event tendered Securities
are converted on (but not prior to) February 20,
2000, such Holders shall be entitled to receive the
interest payable on such Securities on such date;
and
(6) the Conversion Price for
conversion of Securities.
(c) Section 1204, "Deposit of Redemption Price," of the
Indenture is hereby amended and restated to read as follows:
Prior to the February 20, 2000 Redemption
Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of and
accrued interest on all of the Securities which are
to be redeemed on that date. If any Security
tendered for a redemption is converted, any money
deposited with the Trustee or with the Paying Agent
or so segregated and held in trust for the
redemption of such Security shall (subject to any
right of the Holder of such Security or any
Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be
paid to the Company on Company Request, or, if then
held by the Company shall be discharged from such
trust.
Section 2.4. Other Amendments. All other reference to the
date "February 20, 1993" in the Indenture or in the form of Securities are
hereby amended to read "February 20, 2000."
ARTICLE THREE
Successor Provisions
--------------------
Section 3.1. Assumption by Successor. XCF Acceptance
Corporation, the successor to the Company pursuant to the Merger, hereby
expressly assumes upon the effectiveness of the Merger and this First
Supplemental Indenture, by execution hereof and delivery to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest (including all additional amounts payable pursuant to Section 1004 of
the Indenture)
8
on all the Securities, as modified by this First Supplemental Indenture, and
the performance of every covenant of the Indenture on the part of the Company
to be performed or observed, as modified by this First Supplemental Indenture.
Section 3.2. Provisions for Conversion. The Holder of each
Security outstanding after the 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 number of shares of Bank
Stock receivable in the Merger by a holder of the number of shares of Common
Stock of the Company into which such Security might have been converted
immediately prior to the Merger.
ARTICLE FOUR
Miscellaneous Provisions
------------------------
Section 4.1. Interpretation. This First Supplemental
Indenture is a supplemental indenture pursuant to Sections 801 and 802 of the
Indenture. Upon execution, delivery and effectiveness pursuant to Article One
of this First Supplemental Indenture, the Indenture shall be modified and
amended in accordance with this First 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 First
Supplemental Indenture will control. Upon execution, delivery and
effectiveness pursuant to Section 3.1 of Article Three of this First
Supplemental Indenture, the Indenture, as modified and amended in accordance
with this First Supplemental Indenture, shall be assumed by XCF Acceptance
Corporation. The Indenture, as modified and amended by this First 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 First Supplemental Indenture, the provisions
of the Indenture, as modified and amended by this First Supplemental Indenture,
shall control.
Section 4.2. Successors and Assigns. All the covenants,
stipulations, promises and agreements in this First Supplemental Indenture made
by or on behalf of the Company, or the Trustee, shall bind and inure to the
benefit of their respective successors and assigns.
Section 4.3. Counterparts. This First 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.
9
Section 4.4. 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 4.5. Recitals. The recitals contained herein and in
the Securities, as amended hereby, (except the Trustee's certificates of
authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture or of the Securities, as amended hereby, or coupons.
Section 4.6. Governing Law. This First Supplemental
Indenture shall be governed by and construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed as of the day and year first
above written.
CALFED INC.
By: /s/ Xxxxx St. Xxxxxx
________________________
Xxxxx St. Xxxxxx
Chairman of the Board,
President and Chief
Executive Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
Secretary
XCF ACCEPTANCE CORPORATION
By: /s/ Xxxxx St. Xxxxxx
________________________
Xxxxx St. Xxxxxx
President
Attest:
/s/ Xxxxx X. Xxxxxxxxxx
------------------------
Xxxxx X. Xxxxxxxxxx
Secretary
10
CALIFORNIA FEDERAL BANK, A
FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxxxxxx
________________________
Xxxxxxx X. Xxxxxxxxx
President and Chief
Executive Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
Secretary
CHEMICAL BANK, as Trustee
By:________________________
Its:_______________________
Attest:
By:________________________
Its:_______________________
11
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On the 16th day of December 1992, before me, personally came Xxxxx St.
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at Los Angeles, California; that he is Chairman, President & CEO of
CalFed Inc., 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.
[GRAPHIC OMITTED] /s/ Xxxxxx X. Xxxxxx
---------------------------
Notary Public in and for
said State
[Seal]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On the 16th day of December 1992, before me, personally came Xxxxxxx X.
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at Glendale, California; that he is SVP and Chief Legal Officer of
CalFed Inc., 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.
[GRAPHIC OMITTED] /s/ Xxxxxx X. Xxxxxx
---------------------------
Notary Public in and for
said State
[Seal]
12
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On the 16th day of December 1992, before me, personally came Xxxxx St.
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at Los Angeles, California; that he is President & CEO of XCF
Acceptance Corporation, 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.
[GRAPHIC OMITTED] /s/ Xxxxxx X. Xxxxxx
---------------------------
Notary Public in and for
said State
[Seal]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On the 16th day of December 1992, before me, personally came Xxxxx X.
Xxxxxxxxxx to me known, who, being by me duly sworn, did depose and say that
she resides at Los Angeles, California; that she is Secretary of XCF Acceptance
Corporation, one of the parties described in and who executed the above
instrument; and that she signed her name thereto by authority of the Board of
Directors of said Company.
WITNESS my hand and official seal.
[GRAPHIC OMITTED] /s/ Xxxxxxxx Xxxxxxx
---------------------------
Notary Public in and for
said State
[Seal]
13
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On the 16th day of December 1992, before me, personally came Xxxxxxx X.
Xxxxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at Encino, California; that he is President & CEO of California Federal
Bank, a Federal Savings 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.
[GRAPHIC OMITTED] /s/ Xxxxxx X. Xxxxxx
---------------------------
Notary Public in and for
said State
[Seal]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On the 16th day of December 1992, before me, personally came Xxxxxxx X.
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at Glendale, California; that he is SVP and Chief Legal Officer of
California Federal Bank, a Federal Savings 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.
[GRAPHIC OMITTED] /s/ Xxxxxx X. Xxxxxx
---------------------------
Notary Public in and for
said State
[Seal]
14
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On the _____ day of ____________________ 1992, before me, personally came
________________________ to me known, who, being by me duly sworn, did depose
and say that he resides at ____________________, ______________; that he is
__________________ of Chemical 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.
---------------------------
Notary Public in and for
said State
[Seal]
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On the _____ day of ____________________ 1992, before me, personally came
________________________ to me known, who, being by me duly sworn, did depose
and say that he resides at ____________________, ______________; that he is
__________________ of Chemical 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.
---------------------------
Notary Public in and for
said State
[Seal]
15
