Exhibit 4.19
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THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 1, 2001
between
REPUBLIC SECURITY FINANCIAL CORPORATION,
WACHOVIA ACQUISITION CORPORATION 2001-01
and
THE BANK OF NEW YORK,
AS TRUSTEE
10.35% SENIOR DEBENTURES DUE 2002
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THIRD SUPPLEMENTAL INDENTURE, dated as of March 1, 2001 (this
"Third Supplemental Indenture"), between Republic Security Financial
Corporation, a Florida corporation (the "Company"), Wachovia Acquisition
Corporation 2001-01, a North Carolina corporation (the "Surviving Company"), and
The Bank of New York, as trustee (the "Trustee").
RECITALS
WHEREAS, First Palm Beach Bancorp, Inc., a Delaware
corporation (the "Predecessor"), and the Trustee entered into an Indenture,
dated as of June 30, 1997 (the "Original Indenture"), pursuant to which the
Predecessor issued its 10.35% Senior Debentures due June 30, 2002 in an
aggregate principal amount of $35,000,000 (the "Securities");
WHEREAS, pursuant to Section 10.02 of the Original Indenture,
the Predecessor, the Company and the Trustee entered into a Supplemental
Indenture, dated as of the 29th day of October, 1998 (the "First Supplemental
Indenture"), and pursuant to Section 9.01(g) of the Original Indenture, as
supplemented by the First Supplemental Indenture, the Company and the Trustee
entered into a Supplemental Indenture, dated as of the 21st day of December,
2000 (the "Second Supplemental Indenture" and, together with the Original
Indenture and the First Supplemental Indenture, the "Current Indenture");
WHEREAS, the Company intends to merge with and into the
Surviving Company (the "Merger", and the effective date and time of the Merger
is referred to herein as the "Effective Time");
WHEREAS, at the Effective Time, (1) the Surviving Company will
assume the due and punctual payment of the principal of, premium, if any, and
interest on the Securities according to their tenor and the due and punctual
performance of all the covenants and conditions of the Current Indenture to be
kept or performed by the Surviving Company, and (2) conforming amendments to the
Current Indenture relating to the Merger are to become effective;
WHEREAS, pursuant to Section 9.01(a) of the Current Indenture,
the Company and the Trustee may, without the consent of the holders of
Securities, supplement the Current Indenture to evidence the succession of the
Surviving Company to the Company and the assumption by the Surviving Company of
the covenants, agreements and obligations of the Company under the Current
Indenture; and
WHEREAS, pursuant to Section 9.05 of the Current Indenture,
the Trustee has received (1) an Officers' Certificate stating that all
conditions precedent relating to entering into this Third Supplemental Indenture
have been complied with and (2) an Opinion of Counsel of Sullivan & Cromwell,
counsel to the Surviving Company, stating that this Third Supplemental Indenture
complies with the provisions of Article IX of the Indenture;
NOW, THEREFORE, Republic, Merger Sub and the Trustee agree as
follows for the equal and proportionate benefit of the respective
Securityholders from time to time, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For purposes of this Third
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) terms defined in the preamble, recitals or other Articles
of this Third Supplemental Indenture have the meanings assigned to them
therein, terms defined in this Article have the meanings assigned to
them in this Article, and all such defined terms include the plural as
well as the singular;
(b) terms not expressly defined in this Third Supplemental
Indenture have the meanings assigned to them in Article I of the
Current Indenture, or as otherwise defined in the Current Indenture;
and
(c) "Indenture" means the Current Indenture, as amended by
this Third Supplemental Indenture or as otherwise supplemented or
amended from time to time by one or more supplemental indentures
entered into pursuant to the applicable provisions of the Indenture.
Article II
THE MERGER
Section 2.01 Assumption by Merger Sub. At the Effective Time,
(a) the Surviving Company, as a result of its being the surviving corporation in
the Merger, agrees that it shall assume the due and punctual payment of the
principal of (and premium, if any) and interest on the Securities according to
their tenor and the due and punctual performance and observance of all the
covenants and conditions of the Indenture to be kept or performed by the
Company; and (b) with regard to the Indenture, the Surviving Company shall
succeed to and be substituted for the Company, with the same effect as if it had
been named in the Indenture as the party of the first part, and the Company
thereupon shall be relieved of any further liability or obligation under the
Indenture or upon the Securities. Following the execution and delivery of this
Third Supplemental Indenture, the parties hereto agree that all references to
the "Company" in the Indenture and the Securities shall be deemed references to
the Surviving Company.
Section 2.02 Representations, Warranties and Covenants
regarding the Merger. The Company and the Surviving Company jointly and
severally represent, warrant and covenant to the Trustee as follows:
(a) the Surviving Company is a corporation duly organized and
validly existing under the laws of the State of North Carolina;
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(b) Immediately before and after giving effect to the Merger
and the assumption contemplated by Section 2.02 of this Third
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 the Securities.
Section 2.03 Conditions Precedent to Trustee's Consent to
Merger. Notwithstanding anything to the contrary in this Third Supplemental
Indenture, the Trustee's consent to the Merger is subject to Sullivan &
Cromwell, counsel to the Surviving Company, delivering to the Trustee an
executed Opinion of Counsel, dated as of the date hereof, substantially in the
form of Exhibit A, and the Company delivering an Officers' Certificate in the
form of Exhibit B.
Article III
MISCELLANEOUS
Section 3.01 Effect of Third Supplemental Indenture. Upon the
execution and delivery of this Third Supplemental Indenture by the Company and
the Trustee, the Indenture shall be supplemented in accordance herewith, and
this Third Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Securityholder shall be bound thereby.
Section 3.02 Current Indenture Remains in Full Force and
Effect. Except as supplemented hereby, all provisions in the Current Indenture
shall remain in full force and effect.
Section 3.03 Current Indenture and Third Supplemental
Indenture Construed Together. This Third Supplemental Indenture is an indenture
supplemental to and in implementation of the Current Indenture, and the Current
Indenture and this Third Supplemental Indenture shall henceforth be read and
construed together.
Section 3.04 Confirmation and Preservation of Indenture. The
Current Indenture as amended and supplemented by this Third Supplemental
Indenture is in all respects confirmed and preserved.
Section 3.05 Conflict with Trust Indenture Act. If and to the
extent any provision of this Third 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 Third
Supplemental Indenture, the provision of the Trust Indenture Act shall control.
If any provision of this Third 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 Third Supplemental Indenture, as the
case may be.
Section 3.06 Severability. In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality
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and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 3.07 Headings. The Article and Section headings of
this Third Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Third Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions
of this Third Supplemental Indenture.
Section 3.08 Benefits of Third Supplemental Indenture, etc.
Nothing in this Third 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 Securityholders, any benefit
of any legal or equitable right, remedy or claim under the Indenture, this Third
Supplemental Indenture or the Securities.
Section 3.09 Successors. All agreements of the Company and the
Surviving Company in this Third Supplemental Indenture shall bind their
successors. All agreements of the Trustee in this Third Supplemental Indenture
shall bind its successors.
Section 3.10 Trustee Not Responsible for Recitals. The
recitals contained in this Third Supplemental Indenture shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representation as to the validity or
sufficiency of this Third Supplemental Indenture.
Section 3.11 Certain Duties and Responsibilities of the
Trustee. In entering into this Third 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 3.12 Governing Law. The internal law of the State of
New York shall govern and be used to construe this Third Supplemental Indenture.
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Section 3.13 Notices. Effective as of the Effective Time, the
addresses for notices set forth in the Current Indenture shall be amended,
without further action, to read as follows:
(a) if to the Company:
Wachovia Acquisition Corporation 2001-01
c/o Wachovia Corporation
100 North Main Street
P.O. Box 3099
Winston-Salem, North Carolina 27150
(b) if to the Trustee:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Section 3.14 Counterparts. This Third 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.
[Next page is signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed by their duly authorized officers,
all as of the date first written above.
REPUBLIC SECURITY FINANCIAL
CORPORATION
By:
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Name: Rudy E. Schupp
Title: Chairman, President and
Chief Executive Officer
WACHOVIA ACQUISITION
CORPORATION 2001-01
By:
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Name: Robert S. McCoy
Title: President
THE BANK OF NEW YORK, as Trustee
By:
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Name: Ming Shiang
Title: Vice President
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