EXHIBIT 4.13
SUPPLEMENTAL DEBENTURE AGREEMENT
This Supplemental Debenture Agreement, dated November 27, 1996 (the
"Supplemental Debenture Agreement"), is made by and between Cupertino National
Bancorp, a California corporation ("Cupertino"), and Mid-Peninsula Bancorp, a
California corporation ("Mid-Peninsula").
RECITALS
A. Cupertino is the issuer of those certain 11.5% Subordinated Debentures
Due 2005 (the "Debentures") pursuant to the terms and conditions set forth in
that certain Debenture Agreement, dated as of September 27, 1995, as amended by
that certain Supplemental Debenture Agreement dated as of November 22, 1996 (the
"Debenture Agreement"), and that certain Private Placement Offering Memorandum,
dated August 22, 1995 to the Debenture holders.
B. Cupertino and Mid-Peninsula have entered into a Second Amended and
Restated Agreement and Plan of Reorganization and Merger, dated as of August 20,
1996 (the "Reorganization Agreement") and a Merger Agreement, dated November 15,
1996, pursuant to which Cupertino shall, by operation of law, be merged with and
into Mid-Peninsula (the "Merger"), the name of Mid-Peninsula shall be changed to
Greater Bay Bancorp ("GB Bancorp"), and GB Bancorp shall be the surviving
entity.
C. Section 9.1 of the Debenture Agreement prohibits Cupertino from, inter
alia, merging with any other corporation unless (i) the corporation into which
Cupertino is merged shall be a corporation organized and existing under the laws
of the United States of America or any State or the District of Columbia; (ii)
the corporation into which Cupertino is merged shall expressly assume, by a
supplemental debenture agreement in form reasonably satisfactory to Cupertino,
the obligations of Cupertino under the Debenture Agreement; (iii) immediately
after giving effect to the merger, no event of default shall have occurred or be
continuing; (iv) immediately after giving effect to the merger, Cupertino
National Bank & Trust ("CNB"), a wholly-owned subsidiary of Cupertino, shall be
in compliance with all applicable minimum capital requirements; and (iv)
Cupertino shall have obtained an opinion of counsel stating that such merger and
such supplemental debenture agreement complies with the requirements of Section
9.1 of the Debenture Agreement and that all conditions precedent therein have
been complied with.
D. Cupertino and Mid-Peninsula desire, by this Supplemental Debenture
Agreement, to evidence the assumption, by Mid-Peninsula, of the obligations of
Cupertino under the Debenture Agreement and Debentures, as required by Section
9.1 of the Debenture Agreement, effective upon the Effective Time of the Merger
(as such term is defined in the Reorganization Agreement).
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, Cupertino and Mid-Peninsula, intending to
be legally bound, agree as follows:
1. Assumption. At and after the Effective Time of the Merger,
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Mid-Peninsula assumes and agrees to perform, satisfy, discharge and observe each
and every obligation, liability, duty and covenant on the part to be performed
or observed by Cupertino under the Debenture Agreement and the Debentures,
including, without limitation, the due and punctual payment of the principal of
and any interest on the Debentures as and when due.
2. Representations and Warranties.
(a) By Cupertino. Cupertino hereby represents and warrants to
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Mid-Peninsula as follows:
(i) Cupertino is a corporation duly organized, validly existing
and in good standing under the laws of California;
(ii) the copy of the Debenture Agreement attached as Exhibit A
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hereto is a complete and accurate copy of the Debenture Agreement as currently
in effect;
(iii) At the date hereof, Cupertino is not in default under the
Debenture Agreement, no event has occurred and is continuing which, after notice
or lapse of time or both, would constitute a default under the Debenture
Agreement and, immediately after giving effect to the Merger, Cupertino shall
not be in default under the Debenture Agreement and no event shall have occurred
and be continuing which, after notice or lapse of time or both would constitute
a default under the Debenture Agreement.
(iv) At the date hereof, CNB is and, immediately after giving
effect to the Merger, CNB shall be, in compliance with all applicable minimum
capital requirements.
(b) By Mid-Peninsula. Mid-Peninsula hereby represents and warrants to
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Cupertino that Mid-Peninsula is a corporation duly organized, validly existing
and in good standing under the laws of California.
3. Effect of Assumption. From and after the Effective Time of the Merger,
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GB Bancorp shall succeed to, and be substituted for, and may exercise every
right and power of, Cupertino under the Debenture Agreement with the same effect
as if GB Bancorp had been originally named in the place and stead of Cupertino
in the Debenture Agreement, and the
Debenture holders shall look solely and exclusively to GB Bancorp for the
performance and discharge of the obligations of Cupertino under the Debenture
Agreement and the Debentures.
4. No Other Amendments. The Debenture Agreement, as expressly modified by
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the terms of this Supplemental Debenture Agreement, shall remain in full force
and effect in accordance with its terms.
5. General Provisions.
(a) This Supplemental Debenture Agreement may be executed in two or
more counterparts, each of which shall be deemed an original as against the
party whose signature is affixed thereto, and together which shall constitute
but one and the same document.
(b) This Supplemental Debenture Agreement, being adopted without the
consent of the Debenture holders pursuant to Section 8.1 of the Debenture
Agreement, shall be binding on and shall inure to the benefit of the parties
hereto, their respective successors, assigns and legal representatives, and each
and every Debenture holder.
(c) This Supplemental Debenture Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts to be performed wholly within such State.
(d) The captions and headings used in this Supplemental Debenture
Agreement are for covenience of reference only and shall not affect the meaning
or interpretation of any provision of this Supplemental Debenture Agreement.
IN WITNESS WHEREOF, Cupertino and Mid-Peninsula have caused this
Supplemental Debenture Agreement to be executed by their respective duly
authorized officers, effective as of the Effective Time of the Merger.
CUPERTINO NATIONAL BANCORP MID-PENINSULA BANCORP
By /s/ C. Xxxxxx Xxxxx By /s/ Xxxxx X. Xxxxxxxxxxx
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C. Xxxxxx Xxxxx Xxxxx X. Xxxxxxxxxxx
President President
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