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GS ESCROW CORP.
GOLDEN STATE HOLDINGS INC.
Floating Rate Notes Due 2003
6 3/4% Senior Notes Due 2001
7% Senior Notes Due 2003
7 1/8% Senior Notes Due 2005
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of September 14, 1998
Supplementing the Indenture, dated
as of August 6, 1998, Between
GS Escrow Corp. and
The Bank of New York, as Trustee
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THE BANK OF NEW YORK,
AS TRUSTEE
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FIFTH SUPPLEMENTAL INDENTURE, dated as of September 14, 1998
(the "Fifth Supplemental Indenture"), among GS ESCROW CORP., a Delaware
corporation (the "Company"), GOLDEN STATE HOLDINGS INC. a Delaware
corporation ("Golden State Holdings"), and THE BANK OF NEW YORK (the
"Trustee"), as Trustee under the Indenture referred to herein.
WHEREAS, the Company and the Trustee heretofore executed and
delivered an Indenture, dated as of August 6, 1998, as supplemented (the
"Indenture"), in respect of the Floating Rate Notes Due 2003, the 6 3/4%
Senior Notes Due 2001, the 7% Senior Notes Due 2003 and the 7 1/8% Senior
Notes Due 2005 (collectively, the "Securities"); and
WHEREAS, the Company and Golden State Holdings have entered
into an Agreement and Plan of Merger dated as of August 6, 1998, pursuant to
which the Company will merge with and into Golden State Holdings (the
"Merger") on the date hereof; and
WHEREAS, Section 5.01(c) of the Indenture provides that in
the case of the Merger, Golden State Holdings, as the surviving Person, shall
expressly assume by supplemental indenture all the obligations of the Company
under the Securities and the Indenture; and
WHEREAS, Section 9.01(2) of the Indenture provides that the
Company and the Trustee may amend the Indenture and the Securities without
notice to or consent of any Holders of the Securities in order to comply with
Article V of the Indenture; and
WHEREAS, this Fifth Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of each of the
Company and Golden State Holdings.
NOW, THEREFORE, the Company, the Trustee and Golden State
Holdings agree as follows for the equal and ratable benefit of the Holders of
the Securities:
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ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
SECTION 1.1. Assumption of the Securities. Golden State
Holdings, as the surviving Person in the Merger, hereby expressly assumes the
due and punctual payment of the principal of and interest on the Securities
and all obligations of the Company under the Securities and the Indenture and
shall be the successor to the Company under the Indenture.
SECTION 1.2. Trustee's Acceptance. The Trustee hereby
accepts this Fifth Supplemental Indenture and agrees to perform the same under
the terms and conditions set forth in the Indenture.
ARTICLE II
Miscellaneous
SECTION 2.1. Effect of Supplemental Indenture. Upon the
later to occur of (i) the execution and delivery of this Fifth Supplemental
Indenture by the Company, Golden State Holdings and the Trustee and (ii) the
consummation of the Merger, the Indenture shall be supplemented in accordance
herewith, and this Fifth Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby.
SECTION 2.2. Indenture Remains in Full Force and Effect.
Except as supplemented hereby, all provisions in the Indenture shall remain in
full force and effect.
SECTION 2.3. Indenture and Supplemental Indenture Construed
Together. This Fifth Supplemental Indenture is an indenture supplemental to
and in implementation of the Indenture, and the Indenture and this Fifth
Supplemental Indenture shall henceforth be read and construed together.
SECTION 2.4. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Fifth Supplemental Indenture is in all
respects confirmed and preserved.
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SECTION 2.5. Conflict with Trust Indenture Act. If any
provision of this Fifth Supplemental Indenture limits, qualifies or conflicts
with any provision of the TIA that is required under the TIA to be part of and
govern any provision of this Fifth Supplemental Indenture, the provision of
the TIA shall control. If any provision of this Fifth Supplemental Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the provision of the TIA shall be deemed to apply to the Indenture
as so modified or to be excluded by this Second Supplemental Indenture, as
the case may be.
SECTION 2.6. Severability. In case any provision in this
Fifth Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 2.7. Terms Defined in the Indenture. All capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Indenture.
SECTION 2.8. Headings. The Article and Section headings of
this Fifth Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Fifth Supplemental
Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 2.9. Benefits of Fifth Supplemental Indenture, etc.
Nothing in this Fifth Supplemental Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and thereto
and their successors hereunder and thereunder and the Holders of the
Securities, any benefit of any legal or equitable right, remedy or claim under
the Indenture, this Fifth Supplemental Indenture or the Securities.
SECTION 2.10. Successors. All agreements of Golden State
Holdings in this Fifth Supplemental Indenture shall bind its successors. All
agreements of the Trustee in this Fifth Supplemental Indenture shall bind its
successors.
SECTION 2.11. Trustee Not Responsible for Recitals. The
recitals contained herein shall be taken as the statements of the Company and
of Golden State Holdings, and the Trustee assumes no responsibility for their
correctness.
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SECTION 2.12. Certain Duties and Responsibilities of the
Trustee. In entering into this Fifth Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
SECTION 2.13. Governing Law. This Fifth Supplemental
Indenture shall be governed by, and construed in accordance with, the laws of
the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 2.14. Counterpart Originals. The parties may sign
any number of copies of this Fifth Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Fifth
Supplemental Indenture to be duly executed as of the date first written
above.
GS ESCROW CORP.
By: /s/ Glenn P. Dickes
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Name: Glenn P. Dickes
Title: Vice President and Secretary
GOLDEN STATE HOLDINGS INC.
By: /s/ Richard H. Terzian
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Name: Richard H. Terzian
Title: Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Thomas C. Knight
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Name: Thomas C. Knight
Title: Assistant Vice President
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