EXHIBIT 99.a
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XXXXX XXXX XXXXX XXXXXXX, XXX.,
XXXXXXXX SECURITY FINANCIAL CORPORATION
and
THE BANK OF NEW YORK,
AS TRUSTEE
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SUPPLEMENTAL INDENTURE
Dated as of October 29, 1998
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10.35% Senior Debentures Due 2002
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SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 29th day of October, 1998, among First Palm Beach Bancorp, Inc.,
a Delaware corporation (the "Company" or "FPBB"), as original issuer, Republic
Security Financial Corporation, a Florida corporation ("RSFC" or, after the
Merger Date, the "Company"), and The Bank of New York, as trustee (the
"Trustee").
WHEREAS, the Company and the Trustee have entered into an
Indenture dated as of June 30, 1997, pursuant to which the Company issued its
10.35% Senior Debentures due 2002 in an aggregate principal amount of
$35,000,000 (the "Original Indenture"); and
WHEREAS, pursuant to the Original Indenture, the Company
issued and the Trustee authenticated and delivered $35,000,000 aggregate
principal amount of the Company's 10.35% Senior Debentures due June 30, 2002
(the "Securities"); and
WHEREAS, the Company intends to merge with and into RSFC, with
RSFC being the sole surviving entity (the "Merger"). The effective time and date
of the Merger is referred to herein as the "Merger Date"; and
WHEREAS, effective as of the Merger Date, (i) RSFC is to
assume the due and punctual payment of the principal of, premium, if any, and
interest on all of the Securities and the performance of every covenant of the
Original Indenture on the part of FPBB to be performed or observed, and (ii)
certain conforming amendments to the Original Indenture relating to the Merger
are to become effective; and
WHEREAS, pursuant to Section 10.02 of the Original Indenture,
the Company and the Trustee are required to, without the consent of the holders
of the Securities (the "Holders"), amend or supplement the Original Indenture to
evidence the merger of FPBB into RSFC in accordance with and subject to the
terms and conditions of the Original Indenture and the Securities; and
WHEREAS, this Supplemental Indenture has been duly authorized
by all necessary corporate action on the part of FPBB and RSFC.
NOW, THEREFORE, the Company, RSFC and the Trustee agree as
follows for the equal and ratable benefit of the Holders:
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ARTICLE 1
DEFINITIONS
SECTION 1.01 Definitions. For purposes of this Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) terms defined in the preamble and recitals hereto or in
the other Articles hereof have the meanings assigned to them therein;
(b) terms defined in this Article have the meaning assigned to
them in this Article, and include the plural as well as the singular;
(c) terms not expressly defined in this Supplemental Indenture
have the meanings assigned to them in Article One of the Original Indenture, or
as otherwise defined in the Original Indenture; and
(d) "Indenture" means the Original Indenture, as amended by
this Supplemental Indenture or as otherwise supplemented or amended from time to
time by one or more indentures supplemental thereto or hereto entered into
pursuant to the applicable provisions of the Indenture.
ARTICLE II
THE MERGER
SECTION 2.01 Assumption by RSFC. Effective as of the Merger
Date, (a) RSFC, as a result of its being the surviving corporation in the
Merger, agrees that the due and punctual payment of the principal (and premium,
if any) and interest on the Securities 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 Company shall be assumed by RSFC;
and (b) with regard to the Indenture, RSFC shall succeed to and be substituted
for FPBB, with the same effect as if it had been named in the Indenture as the
party of the first part, and FPBB thereupon shall be relieved of any further
liability or obligation under the Indenture or upon the Securities. Following
the execution and delivery of this Supplemental Indenture, the parties hereto
agree that all references to the "Company" in the Indenture and the Securities
shall be deemed references to RSFC.
SECTION 2.02 Representations, Warranties and Covenants
regarding the Merger. FPBB and RSFC jointly and severally represent, warrant and
covenant to the Trustee as follows:
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(a) RSFC is a corporation duly organized and validly existing
under the laws of the State of Florida;
(b) Immediately before and after giving effect to the Merger
and the assumption contemplated by Section 2.02 of this Supplemental Indenture,
no Default or Event of Default will occur or be continuing.
(c) To the extent the Securities are rated by a nationally
recognized statistical rating organization, the Merger will not cause the
Securities to be downgraded by a nationally recognized statistical rating
organization which theretofore has rated such Securities.
SECTION 2.03 Conditions Precedent to Trustee's Consent to
Merger. Notwithstanding anything to the contrary in this Supplemental Indenture,
the Trustee's consent to the Merger is subject to Xxxxxx, Xxxxx & Xxxxxxx LLP,
counsel to RSFC, delivering to the Trustee an executed Opinion of Counsel, dated
as of the date hereof, substantially in the form of Exhibit A hereto, and the
Company delivering an Officer's Certificate in the form of Exhibit B hereto.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Effect of Supplemental Indenture. Upon the
execution and delivery of this Supplemental Indenture by the Company, RSFC and
the Trustee, the Indenture shall be supplemented in accordance herewith, and
this 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 3.02 Original Indenture Remains in Full Force and
Effect. Except as supplemented hereby, all provisions in the Original Indenture
shall remain in full force and effect.
SECTION 3.03 Original Indenture and Supplemental Indenture
Construed Together. This Supplemental Indenture is an indenture supplemental to
and in implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04 Confirmation and Preservation of Indenture. The
Original Indenture as amended and supplemented by this Supplemental Indenture is
in all respects confirmed and preserved.
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SECTION 3.05 Conflict with Trust Indenture Act. If and to the
extent any provision of this Supplemental Indenture limits, qualifies or
conflicts with any provision of the Trust Indenture Act that is required under
the Trust Indenture Act to be part of and govern any provision of this
Supplemental Indenture, the provision of the Trust Indenture Act shall control.
If any provision of this Supplemental Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
provision of the Trust Indenture Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this Supplemental Indenture, as the case may
be.
SECTION 3.06 Severability. In case any provision in this
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 3.07 Terms Defined in the Indenture. All capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Indenture.
SECTION 3.08 Headings. The Article and Section headings of
this Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Supplemental Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 3.09 Benefits of Supplemental Indenture, etc. Nothing
in this 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, any benefit of any legal or equitable
right, remedy or claim under the Indenture, this Supplemental Indenture or the
Securities.
SECTION 3.10 Successors. All agreements of the Company and
RSFC in this Supplemental Indenture shall bind its successors. All agreements of
the Trustee in this Supplemental Indenture shall bind its successors.
SECTION 3.11 Trustee Not Responsible for Recitals. The
recitals contained herein shall be taken as the statements of FPBB and RSFC, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representation as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 3.12 Certain Duties and Responsibilities of the
Trustee. In entering into this Supplemental Indenture, the Trustee shall be
entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the
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liability or affording protection to the Trustee, whether or not elsewhere
herein so provided.
SECTION 3.13 GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION 3.14 Notices. Effective as of the Merger Date, the
addresses for notices set forth in the Original Indenture shall be amended,
without further action, to read as follows:
(a) if to the Company:
Republic Security Financial Corporation
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
(b) if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
SECTION 3.15 Counterparts. This Supplemental Indenture may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed by their duly authorized officers,
all as of the date first written above.
FIRST PALM BEACH BANCORP, INC.
By: /S/ R. XXXXX XXXXXXX
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Name: R. Xxxxx Xxxxxxx
Title: Executive Vice President
REPUBLIC SECURITY FINANCIAL
CORPORATION
By: /S/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /S/ XXXX XXXX XXXXXXXXX
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Name: Xxxx Xxxx Xxxxxxxxx
Title: Vice President
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EXHIBIT A
October 29, 0000
Xxx Xxxx xx Xxx Xxxx, as Trustee
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trustee Administration
Re: 10.35% Senior Debentures of First
PALM BEACH BANCORP, INC. DUE 2002
Ladies and Gentlemen:
We have acted as counsel to Republic Security Financial Corporation ("RSFC") in
connection with the merger of First Palm Beach Bancorp, Inc. ("FPBB") into RSFC,
with RSFC being the surviving entity (the "Merger"). This opinion is delivered
to you pursuant to Section 10.03 of that certain Indenture dated as of June 30,
1997 (the "Indenture"), between FPBB and The Bank of New York, as Trustee,
pursuant to which FPBB issued its 10.35% Senior Debentures due 2002 (the
"Securities").
We have examined: (i) the Indenture; (ii) the Agreement and Plan of Merger
between RSFC and FPBB dated as of May 27, 1998, and amended as of August 17,
1998 (the "Merger Agreement"); (iii) the resolutions of the board of directors
and the shareholders of FPBB and RSFC authorizing the Merger; (iv) the Articles
of Merger executed by FPBB and RSFC which are to be filed in the Office of the
Secretary of State of the State of Florida; (v) the Certificate of Merger which
is to be filed in the Office of the Secretary of State of the State of Delaware;
and (vi) such other documents as we have deemed necessary or appropriate for
purposes of the opinions hereafter expressed.
In such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all
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The Bank of New York, as Trustee
October 29, 1998
Page 2
documents submitted to us as copies. We have also assumed that the transactions
related to the Merger or contemplated by the Merger will be consummated in
accordance with the Merger Agreement, and that none of the terms and conditions
contained therein will have been waived or modified in any respect prior to the
effectiveness of the Merger. Finally, we have assumed that the Merger will
qualify as a statutory merger under the laws of the States of Delaware and
Florida.
As to matters of fact, we have relied, to the extent we deem proper, upon the
representations and certificates of officers of RSFC and upon certain
certificates of and telephone conversations with public officials.
Based upon and subject to the foregoing, it is our opinion that:
1. Upon effectiveness of the Merger, RSFC will assume all obligations of FPBB
under the Indenture, including, without limitation, the due and punctual
payment of the principal of (and premium, if any) and interest on all of
the Securities and the performance of every covenant of the Indenture on
the part of FPBB to be performed or observed.
2. The Supplemental Indenture attached hereto as Exhibit A complies with the
requirements of Article IX of the Indenture, the terms of the Merger and
the assumption of the obligations of FPBB by RSFC as set forth in the
Merger Agreement comply with the provisions of Article X of the Indenture
and, upon effectiveness of the Merger, all conditions precedent in the
Indenture relating to the Merger will have been satisfied.
This opinion is being furnished only to the addressee hereof and is solely for
its benefit. This opinion may not be relied upon for any other purpose, or
relied upon by any other person or entity for any purpose, without in each
instance obtaining our prior written consent.
Very truly yours,
/s/ Xxxxxx, Xxxxx & Xxxxxxx, LLP
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Xxxxxx, Xxxxx & Bockius, LLP
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EXHIBIT B
OFFICERS' CERTIFICATE
(SUPPLEMENTAL INDENTURE)
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This Officers' Certificate (the "Certificate") is delivered as of
October 29, 1998, by the undersigned, in their respective capacities as officers
of FIRST PALM BEACH BANCORP, INC., a Delaware corporation ("FPBB"), and REPUBLIC
SECURITY FINANCIAL CORPORATION, a Florida corporation ("RSFC"), to THE BANK OF
NEW YORK, in its capacity as Trustee under the Indenture dated as of June 30,
1997, between FPBB, as Issuer, and The Bank of New York, as Trustee, as amended,
relating to the 10.35% Supplemental Debentures due 2002 referred to therein (the
"Indenture"). This Certificate is delivered pursuant to Section 9.05 of the
Indenture. Capitalized terms used and not defined in this Certificate shall have
the meanings given to them in the Indenture.
The undersigned, in their respective capacities as officers of FPBB and
RSFC, do hereby certify to the Trustee, for the ratable benefit of the Holders,
that:
1. The undersigned are officers of FPBB and RSFC and have read the
applicable covenants and conditions of the Indenture relating to the subject
matter of this Certificate and have made such inquiries of counsel and of other
officers or employees of FPBB and RSFC and made such other examinations or
investigations as are necessary to issue this Certificate.
2. Upon the filing of the certificate of merger of FPBB and RSFC with
the Secretary of State of Delaware and the articles of merger of FPBB and RSFC
with the Secretary of State of Florida, FPBB will merge with and into RSFC
effective as of the time and date set forth therein (the "Merger Date"), with
RSFC being the sole surviving entity (the "RSFC Merger").
3. Effective as of the Merger Date, RSFC will assume all obligations of
FPBB under the Indenture and the Securities, including, without limitation, the
due and punctual payment of the principal of, and premium, if any, and interest
on, all of the Securities and the performance of every covenant of the Indenture
on the part of FPBB to be performed or observed.
4. No Default or Event of Default exists or will occur as a result of
the RSFC Merger.
5. The RSFC Merger will, and the Supplemental Indenture among RSFC,
FPBB and the Trustee dated as of the date hereof (the "Supplemental Indenture")
does, comply with the Indenture (including Article IX thereof), and all
conditions precedent in the Indenture relating to the RSFC Merger and the
Supplemental Indenture have been satisfied.
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IN WITNESS WHEREOF, the undersigned, in their respective capacities as
officers of RSFC and FPBB have executed and delivered this Certificate as of the
date first above written.
REPUBLIC SECURITY FINANCIAL
CORPORATION
By /S/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
FIRST PALM BEACH BANCORP, INC.
By /S/ R. XXXXX XXXXXXX
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Name: R. Xxxxx Xxxxxxx
Title: Executive Vice President
By /S/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
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