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Exhibit 4.7
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE dated as of February 28, 2002, is by
and among STATE STREET BANK AND TRUST COMPANY, a trust company duly organized
and existing under the laws of the Commonwealth of Massachusetts (herein,
together with its successors in trust, the "Trustee"), FIRSTFED AMERICA BANCORP,
INC., a Delaware corporation (the "Successor Company" and the successor by
merger with People's Bancshares, Inc., a Massachusetts corporation under the
Indenture referred to below (the "Existing Issuer")) and the Existing Issuer.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Trustee, the Existing Issuer and the
Successor Company hereby agree as follows:
PRELIMINARY STATEMENTS
The Trustee and the Existing Issuer are parties to that certain
Indenture dated as of June 25, 1997 (the "Indenture"), pursuant to which the
Existing Issuer issued U.S. $14,227,000 of its 9.76% Subordinated Debentures due
2027.
As permitted by the terms of the Indenture, the Existing Issuer has,
simultaneously with the effectiveness of this First Supplement, merged (referred
to herein as the "Transaction" and the Transaction for purposes of Article XII
of the Indenture) with and into the Successor Company where the Successor
Company is the surviving corporation. The parties hereto are entering into this
First Supplemental Indenture pursuant to, and in accordance with, Section 12.2
of the Indenture.
SECTION 1. DEFINITIONS. All capitalized terms used herein which are
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defined in the Indenture, either directly or by reference therein, shall have
the respective meanings assigned them in the Indenture except as otherwise
provided herein or unless the context otherwise requires.
SECTION 2. INTERPRETATION.
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(a) In this Supplemental Indenture, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to any gender includes each other gender;
(iii) the words " herein," "hereof" and "hereunder" and
other words of similar import refer to this
Supplemental Indenture as a whole and not to any
particular Section or other subdivision;
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(iv) reference to any Person includes such Persons'
successors and assigns but, if applicable, only if
such successors and assigns are permitted by this
Supplemental Indenture or the Indenture, and
reference to a Person in a particular capacity
excludes such Person in any other capacity or
individually provided that nothing in this clause
(iv) is intended to authorize any assignment not
otherwise permitted by this Supplemental Indenture or
the Indenture;
(v) reference to any agreement, document or instrument
means such agreement, document or instrument as
amended, supplemented or modified and in effect from
time to time in accordance with the terms thereof
and, if applicable, the terms hereof, as well as any
substitution or replacement therefor and reference to
any note includes modifications thereof and any note
issued in extension or renewal thereof or in
substitution or replacement therefor;
(vi) reference to any Section means such Section of this
Supplemental Indenture; and
(vii) the word "including" (and with correlative meaning
"include") means including without limiting the
generality of any description preceding such term.
(b) No provision in this Supplemental Indenture shall be
interpreted or construed against any Person because that
Person or its legal representative drafted such provision.
SECTION 3. ASSUMPTION OF OBLIGATIONS.
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(a) Pursuant to, and in compliance and accordance with, Section
12.1 of the Indenture, the Successor Company hereby
expressly and unconditionally assumes the due and punctual
payment of the principal of and interest on, all of the
Debentures according to their tenor and the due and
punctual performance and observance of all of the covenants
and conditions of the Indenture to be kept or performed by
the Existing Issuer as the case may be, all as if the
Successor Company were the Existing Issuer thereunder.
(b) Pursuant to Section 12.2 of the Indenture, the Successor
Company shall succeed to, and be substituted for the
Existing Issuer under the Indenture with the same effect as
if the Successor Company had originally been the Existing
Issuer under the Indenture.
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SECTION 4. REPRESENTATIONS AND WARRANTIES. The Successor Company
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represents and warrants that (a) it has all necessary power and authority to
execute and deliver this Supplemental Indenture and to perform the Indenture,
(b) that it is the successor by merger of the Existing Issuer pursuant to a
valid merger effected in accordance with applicable law, (c) that it is a
corporation organized and existing under the laws of the State of Delaware, (d)
that, both immediately before and after giving effect to this First Supplemental
Indenture, no Default or Event of Default has occurred and is continuing, and
(e) that this First Supplemental Indenture is executed and delivered pursuant to
Section 11.1 of the Indenture and does not require the consent of the
Debentureholders.
SECTION 5. CONDITIONS OF EFFECTIVENESS. This First Supplemental
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Indenture shall become effective when, and only when:
(a) the Trustee shall have executed a counterpart of this First
Supplemental Indenture and shall have received a
counterpart of this First Supplemental Indenture executed
by the Successor Company and the Existing Issuer.
(b) the Trustee shall have received an Officer's Certificate
stating that, in the opinion of the Officer, the
Transaction and this First Supplemental Indenture comply
with Article XII of the Indenture; and
(c) the Trustee shall have received an Opinion of Counsel, in
form and substance satisfactory to it, to the effect that
the Transaction and the execution and delivery of this
First Supplemental Indenture is permitted by and is
effected in compliance with the Indenture.
SECTION 6. REFERENCE TO THE INDENTURE.
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(a) Upon the effectiveness of this First Supplemental
Indenture, each reference in the Indenture to "this
Indenture," "hereunder," "herein" or words of like import
shall mean and be a reference to the Indenture, as
affected, amended and supplemented hereby.
(b) Upon the effectiveness of this First Supplemental
Indenture, each reference in the Securities to the
Indenture including each term defined by reference to the
Indenture shall mean and be a reference to the Indenture or
such term, as the case may be, as affected, amended and
supplemented hereby.
(c) The Indenture, as amended and supplemented by the amendment
and supplement referred to above, shall remain in full
force and effect and is hereby ratified and confirmed.
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SECTION 7. EXECUTION IN COUNTERPARTS. This First Supplemental Indenture
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may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument.
SECTION 8. GOVERNING LAW; BINDING EFFECT. This First Supplemental
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Indenture shall be governed by and construed in accordance with the laws of the
State of New York and shall be binding upon the parties hereto and their
respective successors and assigns.
SECTION 9. THE TRUSTEE. The Trustee shall not be responsible in any
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manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Existing Issuer. The
recitals of fact contained herein shall be taken as the statements solely of the
Existing Issuer, and the Trustee assumes no responsibility for the correctness
thereof.
[Signatures begin on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first written
above.
PEOPLE'S BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
President and Chief Executive Officer
STATE STREET BANK AND TRUST COMPANY
(not in its individual capacity but
solely as Trustee)
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Vice President
FIRSTFED AMERICA BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chairman, President and Chief
Executive Officer
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