SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
FIRST PALM BEACH BANCORP, INC.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
33589B105
(CUSIP Number)
David J. Harris, Esq., 1500 K Street, N.W. Washington, D.C. 20005 (202) 626-3385
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
October 31, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 6 Pages
<PAGE>
CUSIP No. 33589B105 Page 2 of 6 Pages
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Josiah T. Austin, S.S.N. ###-##-####
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) x
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ------------------------------------------------------------------------------
NUMBER OF
SHARES 7 SOLE VOTING POWER
BENEFICIALLY
OWNED BY 263,250
EACH
REPORTING
PERSON
WITH
- ------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
- ------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
262,900
- ------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
263,250
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.23%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------------------------------------------------------------------------------
<PAGE>
CUSIP No. 33589B105 Page 3 of 6 Pages
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
El Coronado Holdings, L.L.C.
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) X
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Arizona, U.S.A.
- ------------------------------------------------------------------------------
NUMBER OF
SHARES 7 SOLE VOTING POWER
BENEFICIALLY
OWNED BY 256,500
EACH
REPORTING
PERSON
WITH
- ------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
- ------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
256,500
- ------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
256,500
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.09%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
- ------------------------------------------------------------------------------
<PAGE>
ITEM 1. Security and Issuer.
This Statement relates to the shares of common stock, $.01 par value
("Shares"), of First Palm Beach Bancorp, Inc.(the "Company"). The address of the
Company is 215 South Olive Avenue, West Palm Beach, Florida 33401.
ITEM 2. Identity and Background.
This statement is being filed by Josiah T. Austin, a United States
citizen, and El Coronado Holdings, L.L.C., a U.S. limited liability company
formed in Arizona (hereinafter each a "Reporting Person" and collectively the
"Reporting Persons"). Further information regarding the identity and background
of the Reporting Persons is as follows:
For Mr. Austin:
(a) Josiah T. Austin (hereinafter "Austin")
(b) El Coronado Ranch, Star Route Box 395, Pearce, Arizona 85625;
(c) Present principal occupation: individual investor;
For ECH:
(a) El Coronado Holdings, L.L.C. ("ECH");
(b) Star Route 395, Pearce, Arizona 85625;
(c) Holding Company;
(d)-(e) During the last five years, none of the Reporting Persons nor,
to the best of the knowledge of the Reporting Persons, the members or
controlling persons of any Reporting Person have been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), or been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The total consideration for all shares of Common Stock acquired to date
is $7,788,751.87. The Shares herein reported as being beneficially owned by the
Reporting Persons were acquired as follows:
(1) Austin, the sole Managing Member of ECH, contributed to ECH 145,000
Shares of Common Stock having a total cost of $4,050,878.93 to ECH and retained
1,000 shares, having a total cost of $30,405.18, in his own name. Valer C.
Austin, a Non-Managing Member of ECH, contributed to ECH 73,000 Shares having a
total cost of $2,037,464.82. The stated contributions were effective as of
September 1, 1997. The primary source of funds for the acquisition by Austin and
Valer C. Austin was existing personal funds.
(2) Acting on behalf of ECH, Austin purchased from October 22, 1997 to
October 31, 1997 a total of 38,500 shares in the open market for an aggregate
consideration (exclusive of brokers' commissions) of $1,493,451.50. The primary
source of funds used in making these purchases of securities, as detailed under
Item 5, subsection c, was obtained through borrowings under an outstanding
credit line provided by Union Bank of Switzerland, New York Branch, 1345 Avenue
of the Americas, New York, New York 10105. Interest is payable quarterly based
upon the London Interbank offered rate, as adjusted periodically.
(3) Acting on behalf of the Christina E. Lowery Trust, in his capacity
of Trustee, Austin purchased on November 3, 1997 a total of 200 Shares in open
market transactions for an aggregate consideration (exclusive of brokers'
commissions) of $7,900.00. The primary source of funds for this acquisition is
existing funds of the Trust. Prior to this purchase, the Christina E. Lowery
Trust acquired an aggregate total of 1,000 Shares having a total cost (exclusive
of brokers' commission) of $27,711.92.
(4) Acting on behalf of the Matthew Austin Lowery Trust, in his
capacity of Trustee, Austin purchased on November 3, 1997 a total of 200 Shares
in open market transactions for an aggregate consideration (exclusive of
brokers' commissions) of $7,900.00. The primary source of funds for this
acquisition is existing funds of the Trust. Prior to this purchase, the Matthew
Austin Lowery Trust acquired an aggregate total of 1,000 Shares having a total
cost (exclusive of brokers' commission) of $27,711.92.
(5) Acting on behalf of the Mary T. Austin Trust II, in his capacity of
Trustee, Austin purchased on November 3, 1997 a total of 500 Shares in open
market transactions for an aggregate consideration (exclusive of brokers'
commissions) of $19,750.00. The primary source of funds for this acquisition is
existing funds of the Trust.
(6) The Austin-Clark Insurance Trust acquired 1,500 Shares in open
market transactions on June 18, 1997 for a total cost of $45,758.16. The primary
source of funds for this acquisition was existing funds of the Trust.
(7) The Valerie A. Gordon Trust acquired a total of 1,000 Shares in
open market transactions on April 25, 1997 and June 18, 1997 for a total cost of
$29,205.91. The primary source of funds for this acquisition was existing funds
of the Trust.
(8) The Albert H. Gordon Trust, for which Austin serves as Trustee but
does not have investment management responsibility, owns 350 Shares having a
total cost of $9,992.50.
All dollar amounts are in United States dollars.
Item 4. Purpose of Transactions.
The acquisitions of Common Stock to which this statement relates have
been made for investment. Austin will continuously evaluate the business,
financial conditions and prospects of the Company, as well as conditions in the
economy and the banking industry in general, with a view toward determining
whether to hold, decrease or add to these investments in Common Stock.
Item 5. Interest in Securities of the Issuer.
(a) Austin is the beneficial owner of 263,250 shares (5.23%) of the
Common Stock (the "Acquired Stock"), in his personal capacity, as Trustee of the
various aforementioned Trusts and as Sole Managing Member of ECH.
(b) Austin has the sole power to vote or to direct the vote or to
dispose or to direct the disposition of 262,900 shares of the Acquired Stock.
(c) No transactions in the Shares have been effected by the Reporting
Person during the last 60 days, except the following transactions, each of which
was made in a broker's transaction in the open market.
Prices do not include brokerage fees.
Reporting Sale/ No. of Price Per
Person Purchase Date Shares Share
Josiah T. Austin on Purchase 10/22/97 6,000 $39-3/8
behalf of El Coronado " 10/23/97 2,500 $39
Holdings and in his " 10/24/97 5,000 $39-3/8
personal capacity " 10/27/97 3,000 $38-11/16
" 10/27/97 2,000 $38-9/16
" 10/27/97 1,000 $38-9/16
" 10/28/97 4,000 $38-1/4
" 10/31/97 12,500 $38.35
" 11/11/97 2,500 $38.625
Austin on behalf of Purchase 11/03/97 200 $39-1/2
Matthew Austin Lowery
Trust
Austin on behalf of Purchase 11/03/97 200 $39-1/2
Christina E. Lowery
Trust
Austin on behalf of
Mary Austin Trust II Purchase 11/03/97 500 $39-1/2
(d) No person other than Austin, has any right to receive, or the power
to direct the receipt of dividends from, or proceeds from the sale of, such
securities.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relations With Respect to
Securities of the Issuer.
There are no contracts, arrangements, understandings or relationships
(legal or otherwise) between ECH, the various trusts cited herein, Austin and
any person with respect to any securities of the Company.
Item 7. Materials Filed as Exhibits.
Exhibit 1 - Form of Credit Agreement between ECH and Union Bank of
Switzerland.
Signature
After reasonable inquiry and to the best knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: November 12, 1997 /s/ Josiah T. Austin
--------------------------------
Josiah T. Austin
GENERAL TERMS AND CONDITIONS
OF CREDIT ARRANGEMENTS
Investment Services - New York
UBS
Union Bank of Switzerland
I. Purpose of this Agreement.
(a) General. This Agreement sets forth terms and conditions applicable to (i)
any loan (a "Loan") made or to be made to the undersigned (the "Customer") by
Union Bank of Switzerland, New York Branch (the "Bank"), (ii) any letter of
credit (a "Letter of Credit") to be issued by the Bank at the request of the
Customer, whether or not the Customer is identified therein as the account
party, and (iii) any other Obligation (as defined below) of the Customer to the
Bank. Schedule I hereto, as amended from time to time (which is hereby
incorporated herein and made a part of this Agreement), sets forth the amount,
if any, of any line of credit made available to the Customer by the Bank and
certain other terms applicable hereunder. Except as otherwise explicitly stated
in such Schedule, such line of credit shall be uncommitted, and accordingly the
Bank may in its absolute discretion at any time decline to make any Loan to the
Customer or issue any Letter of Credit at the request of the Customer
notwithstanding any other provision or circumstance that may otherwise appear
inconsistent with such absolute discretion. Except as otherwise explicitly
stated in such Schedule, any such line of credit may be terminated or reduced by
the Bank at any time.
(b) Scope of Agreement. Unless expressly agreed in writing by the Bank to the
contrary, all of the provisions of this Agreement shall apply to each Loan, each
Letter of Credit, and any other Obligation as hereinafter defined, whether or
not referred to on Schedule I hereto. The word "Obligations" herein means any
and all indebtedness, obligations and liabilities of any kind, now or hereafter
existing, of the Customer to the Bank, whether absolute or contingent and
however arising or acquired by the Bank, including without limitation (i) the
obligation to pay the principal, interest and other amounts described herein
respecting any Loan, (ii) the obligation to reimburse the Bank for any drawing
under any Letter of Credit and (iii) any guaranty by the Customer of the
obligations of any other person or entity to the Bank.
II. Relation to other Documents.
(a) Note. Any Loan or Loans made or to be made to the customer by the Bank shall
be evidenced by a promissory note in substantially the form of Exhibit A hereto
(the "Note"), which shall be dated the date hereof, signed by the Customer and
received by the Bank before any such Loan will be made. The principal amount of
each such Loan and each repayment thereof may be endorsed by the Bank on the
schedule attached thereto, but any failure to make such an endorsement or any
error in doing so shall not affect the obligations of the Customer hereunder or
under the Note, which shall be absolute and unconditional.
(b) Loan Advices. The date and amount of each Loan made hereunder and the fixed
rate or floating rate basis on which interest is to accrue hereon until
maturity, as well as the maturity in the case of each Fixed Rate Loan (as
defined in paragraph III(a), shall be set forth in a written loan advice to be
delivered to the Customer by the Bank (a "Loan Advice"). Each Loan Advice shall
be conclusive and binding upon the Customer, absent manifest error, unless the
Customer otherwise notifies the Bank in writing no later than the close of
business, New York City Time, on the business day on which the Loan Advice is
received by the Customer, in the case of an asserted error in the rate of
interest on a Fixed Rate Loan, or on the third business day thereafter in any
other case.
III. Loans.
(a) Types of Loans. The terms "Loans" as used herein means Fixed Rate Loans or
Floating Rate Loans or both, as the context requires. "Fixed Rate Loans" are
Loans made hereunder on which, pursuant to the related Loan Advice, interest is
to accrue at a fixed rate for a fixed period. "Floating Rate Loans" are Loans
made hereunder on which, pursuant to the related Loan Advice, interest is to
accrue at floating rates related to the Base Rate, the Prime Rate or the Federal
Funds Rate (as such terms are defined in paragraph V (a)), or any other rate
agreed upon by the parties that may change from time to time.
(b) Manner of Funding. Unless otherwise agreed, all Loans shall be made by
crediting the principal amount thereof to an account maintained by the Customer
with the Bank.
(c) Maturity of Floating Rate Loans. All Floating Rate Loans are payable ON
DEMAND, as to both principal and interest, in the Bank's absolute discretion,
whether or not an Event of Default (as defined in paragraph III(d)) shall have
occurred. This right to demand can be waived by the Bank only in writing
expressly so stating. Any provision or circumstance that may otherwise appear
inconsistent with this right shall not be interpreted as limiting the right in
the absence of the Bank's express written agreement to the contrary.
(d) Maturity of Fixed Rate Loans; Acceleration in Certain Events. All Fixed Rate
Loans shall mature, and shall be repaid in full, at the end of the term
specified in the relevant Loan Advice. The Bank may, by notice to the Customer,
declare all Fixed Rate Loans to be due and payable at any time at which any of
the following events ("Events of Default") shall have occurred and be
continuing:
(i) the principal of or interest on any Loan or any other amount payable
in respect of any Obligation shall not be paid when due;
(ii) the aggregate Lending Value of the Collateral in which the Bank has a
first priority, perfected security interest is determined by the Bank
to be less than the Required Lending Value (the foregoing terms being
used as defined in Article VI);
(iii) the Customer shall fail to provide promptly such financial and other
information as the Bank may reasonably request from time to time;
(iv) the Customer shall fail to perform any other agreement set forth
herein (including any covenant set forth on Schedule I hereto), or any
representation or other statement of the Customer herein (including in
Schedule I hereto) or in any other document delivered in connection
with any Obligation shall prove to have been incorrect in any material
respect when made or deemed made;
(v) if the Customer is a natural person, the Customer shall die or shall
be declared legally incompetent;
(vi) any indebtedness of the Customer for borrowed money shall not have
been paid when due, or any event or condition shall have caused such
indebtedness to become, or shall have permitted the holder hereof to
declare such indebtedness to be, due and payable prior to its stated
maturity;
(vii) any legal proceeding shall have been instituted or any other event
shall have occurred or condition shall exist that in the Bank's
judgment could have a material adverse effect on the financial
condition of the Customer or on the Customer's ability to perform the
Customer's obligations hereunder, or that calls into question the
validity or binding effect of any agreement of the Customer hereunder
or under the Note; or
(viii) the Customer makes an assignment for the benefit of creditors, files
a petition in bankruptcy, is adjudicated insolvent or bankrupt,
petitions or applies to any tribunal for any receiver of or any
trustee for the Customer or any substantial part of the Customer's
property, commences any proceeding relating to the Customer under any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or there is commenced against or with respect to
the Customer or any substantial portion of its property any such
proceeding and an order for relief is issued or such proceeding
remains undismissed for a period of 30 days;
provided that, upon the occurrence of any Event of Default described in clause
(v) or (viii) above, all Fixed Rate Loans, Floating Rate Loans and other
Obligations shall automatically become due and payable without any demand or
other action by the Bank or any other person or entity.
(e) "Breakage" on Fixed Rate Loans. The Customer agrees promptly at the Bank's
request to reimburse the Bank for any loss or cost which the Bank notifies the
Customer has been incurred by the Bank as a result of any payment of the
principal of a Fixed Rate Loan before the expiration of the fixed rate period,
or the customer's failure to take any Fixed Rate Loan on the date agreed upon,
including any such payment or failure resulting from the acceleration of the
maturity of the Loan. Any written notice from the Bank as to the amount of such
loss or cost shall be conclusive absent manifest error.
IV. Letters of Credit.
(a) Applications; Commissions. The Customer may request that a Letter of Credit
be issued by completing, executing and delivering to the Bank an application in
such form as the Bank may specify from time to time. In the event of any
inconsistency between this Agreement and any such application, this Agreement
shall be controlling. The Customer agrees to pay to the Bank such commissions
and other charges in respect of Letters of Credit as may be set forth on
Schedule I hereto or otherwise agreed upon by the Bank and the Customer from
time to time.
(b) Reimbursement. The Customer shall reimburse to the Bank immediately upon
demand the amount of any drawing under any Letter of Credit. Such reimbursement
obligation of the Customer in respect of each Letter of Credit shall be
unconditional and absolute notwithstanding, and neither the Bank nor any of its
correspondents shall have any liability by reason of, (i) any draft,
certificate, bill of lading or other document presented under or in connection
with such Letter of Credit, including any instrument purporting to transfer or
assign such Letter of Credit or any rights thereunder, proving to be forged,
fraudulent, inaccurate or invalid in any respect, (ii) the existence of any
claim, setoff or other rights which the Customer may have at any time against
the beneficiary or any other person or entity, (iii) the failure of any drawing
to conform to the terms of such Letter of Credit (provided that the Bank shall
have acted in good faith and shall not have engaged in willful misconduct in
connection therewith) or the misapplication of the proceeds thereof by the
beneficiary or any other person or entity, (iv) any difference in character,
quality, quantity, condition or value of the property purporting to be
represented by bills of lading or other documents of title from that expressed
in such documents, or (v) any other act, omission or circumstance that would,
but for the provisions of this paragraph (b), constitute a legal or equitable
discharge of any obligation of the Customer hereunder.
(c) Covenants Concerning Letters of Credit. The Customer agrees to obtain
promptly any import, export or other license required in connection with
property to which any Letter of Credit directly or indirectly relates, and
agrees to comply with all applicable laws and regulations in regard to any
shipment, warehousing or financing of any such property. The Customer agrees to
protect, indemnify and hold harmless the Bank and its correspondents from and
against all claims, actions, suits and other proceedings, and all losses,
damages and costs (including fees and expenses of counsel) which the Bank or any
of its correspondents may suffer or incur by reason of the issuance of any
Letter of Credit or any act or omission in respect of any Letter of Credit,
except to the extent resulting from the bad faith or willful misconduct of the
party seeking indemnification.
(d) Event of Defaults. If an Event of Default occurs and is continuing, the
Customer will, on demand by the Bank, pay to the Bank in cash an amount equal to
the maximum amount that may at any time thereafter be drawn under all Letters of
Credit, to be held by the Bank in such manner as the Bank may determine and
applied to the Customer's reimbursement obligations hereunder (with any excess
to be returned to the Customer, subject to Article VI hereof, upon expiration of
all Letters of Credit and reimbursement in full of all amounts drawn
thereunder.)
V. Interest and Other Payments.
(a) Interest; Default Interest. The rate at which each Fixed Rate Loan shall
bear interest, and the maturity of such Loan, will be specified in the relevant
Loan Advice, Floating Rate Loans will bear interest on a daily basis as
specified herein (including the related Loan Advices). Any Loan or other
Obligation for which no interest has been stated in the relevant Loan Advice or
other documentation shall, unless otherwise agreed by the parties in writing,
bear interest at the same rates as, and for all purposes of this Agreement and
the Note shall be treated as, a Floating Rate Loan. As used herein and in
Schedule I hereto, (i) the term "Prime Rate" means the rate per annum announced
by the Bank in New York City as its "prime rate" from time to time, which rate
shall be determined daily, (ii) the term "Federal Funds Rate" means the average
rate per annum quoted to the Bank at 11:00 a.m. (New York City time) on each day
for overnight Federal Funds transactions arranged by three New York Federal
Funds brokers selected by the Bank, and (iii) the term "Base Rate" means the
higher of the Prime Rate and a rate per annum 1% in excess of the Federal Funds
Rate. All interest shall be computed on the basis of the number of days elapsed
and a 360-day year. Unpaid interest accrued on each Loan shall be due at
maturity and, prior thereto, monthly on the same day each month as the day of
the month on which the applicable Loan was made, or on such other monthly basis
as the Bank may specify by at least ten days' written notice to the Customer.
Each repayment or prepayment of principal shall be accompanied by all accrued
and unpaid interest thereon. Notwithstanding the preceding sentences of this
paragraph, any principal, interest, fee or other Obligation (including
reimbursement of any drawing under a Letter of Credit) not paid when due shall
bear interest, payable on demand, at a floating rate per annum which is two
percentage points above the Base Rate. Notwithstanding the foregoing, the
Customer shall not be required to pay interest for any period at a rate
exceeding the maximum rate permitted by law. If the amount of interest payable
by the Customer for any period is reduced pursuant to the preceding sentence,
the amount of interest payable for each succeeding period shall be increased to
the maximum rate permitted by law until the amount of such reduction has been
received by the Bank.
(b) Increased Costs. In the event that any change in applicable law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration thereof subjects the Bank to any tax or charge
of any kind whatsoever with respect to any Fixed Rate or Letter of Credit, or
changes the basis of taxation of payments to the Bank in respect of any Fixed
Rate Loan or Letter of Credit (except for changes in the rate of tax based
solely on the overall net income of the Bank or Union Bank of Switzerland) or
imposes, modifies or deems applicable any reserve or similar requirement against
assets held by or deposits in or for the account of, or loans made or letters of
credits issued by, the Bank, or imposes on the Bank, directly or indirectly, any
other conditions affecting the cost of deposits obtained by the Bank, and the
result of any of the foregoing is to increase the cost to the Bank of making or
maintaining any Fixed Rate Loan or of issuing or maintaining any Letter of
Credit by an amount which the Bank deems to be material, then the Customer will
pay to the Bank upon its demand the additional amount or amounts necessary to
compensate the Bank for such costs. Any written notice from the Bank as to the
amount of compensation due under this paragraph shall be conclusive absent
manifest error.
(c) Capital Adequacy. If the adoption or effectiveness after the date hereof of
any applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the Bank's capital in respect
of this Agreement or any Loan or Letter of Credit to a level below that which
the Bank could have achieved but for such adoption, effectiveness, change or
compliance by an amount deemed by the Bank to be material, the Customer shall
pay to the Bank, on demand, such additional amount or amounts as will compensate
the Bank for such reduction. Any written notice from the Bank as to such
additional amount or amounts shall be conclusive absent manifest error.
(d) Payments; Overdrafts; Business Days. All payments required to be made by the
Customer hereunder shall be made in U.S. dollars immediately available to the
Bank at its office at 299 Park Avenue, New York, New York. All such payments
will be made to the Bank free and clear of any and all present and future taxes,
levies, impost, duties, deductions, withholding, fees, liabilities and similar
charges other than those imposed on the overall net income of the Bank. If any
such taxes or other charges are required to be withheld or deducted from any
amount payable by the Customer under this Agreement, the amount so payable will
be increased to the amount which, after deduction from such increased amount of
all such taxes and other charges required to be withheld or deducted therefrom,
will yield to the Bank the amount stated to be payable under this Agreement. If
any such taxes or charges are paid by the Bank, the Customer will reimburse the
Bank on demand for such payments, together with all interest and penalties which
may be imposed by any governmental agency. The Bank shall have the right, but
not the obligation, to effect payment of amounts owed by the Customer hereunder
from time to time by debiting the same from any Account (as defined in Article
VI(a)). Unless otherwise specified on Schedule I hereto, any overdraft in any
Account shall be payable immediately and shall bear interest until paid in full
at a floating rate per annum which is two percentage points above the Base Rate.
The Bank may (but shall not be obligated to) transfer funds from any Account to
cover an overdraft in any other Account. The Bank will provide the Customer with
subsequent notice of any such overdraft and transfer. Any payment otherwise due
hereunder on a day which is not a business day shall be paid on the next ensuing
business day, with any interest computed to the day of payment. "Business day"
wherever used herein shall mean any day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized to close.
VI. Security.
(a) Security Agreement. As security for the payment of all of the Obligations,
the Customer hereby grants to the Bank a security interest in and lien upon the
following (collectively referred to in this Agreement as the "Collateral"): (i)
every deposit, portfolio management or custody account now or hereafter existing
of the Customer with the Bank and the balance thereof and all assets credited
thereto from time to time (collectively, the "Accounts"), including any such
account balance or assets held by a custodian or sub-custodian for the Bank and
any other present or future claim of the Customer with respect to any Account,
(ii) all money, instruments, securities, documents, credits, claims, demands and
any other property, rights or interests of the Customer or in which the Customer
has any interest, of any kind, tangible or intangible, which are ever in any
Account or otherwise in the possession, custody or control of the Bank or anyone
acting for the Bank for any purpose, (iii) any other assets identified as
Collateral on Schedule I hereto or in which the Customer otherwise grants a
security interest to the Bank and (iv) all interest and dividends on and
proceeds, products and accessions of and to, and any property received or
issuable in exchange for, any of the foregoing. The Bank shall be deemed to have
possession of any property in transit to or set apart or held for it or any of
its affiliates, agents, custodians, sub-custodians, associates or
correspondents. Subject to paragraph (b) of this Article VI, the Customer may
make substitutions in Collateral on not less than three business days' prior
written notice to the Bank.
The Bank shall have with respect to the Collateral, in addition to any rights
referred to herein, all the rights of a secured party under the Uniform
Commercial Code of New York. The Bank shall have the right (but not the
obligation) (i) to hold any Collateral in its name, in the name of any custodian
or subcustodian for the Bank or in the names of any nominee of any of such
entities, and to require the Customer to transfer Collateral into any such name,
(ii) in its name or the name of the Customer to demand, sue for, collect and
receive any money or property at any time due or payable on accounts of or in
exchange for any Collateral, compromise or settle, extend the time of payment or
alter the terms of payment of, any Collateral, and take any other action which
the Bank deems necessary or appropriate in connection with any Collateral or its
custody or preservation, all without notice to the Customer and without
discharging any Obligation or incurring any liability to the Customer. Upon the
occurrence of an Event of Default, the Bank may apply the Collateral to the
Obligations in such order and in such manner as it may choose. The Bank shall
have no obligations with respect to Collateral except to use reasonable care in
the custody and preservation thereof to the extent required by law. With respect
to any Collateral held by a custodian or sub-custodian for the Bank, the Bank's
duty under the preceding sentence shall be limited to the use of reasonable care
in the selection of such custodian or sub-custodian. The Customer, and not the
Bank, shall be obligated to give any notice or take any other steps necessary to
preserve rights against any other or prior party to any instrument. To the
extent permitted by law, any requirement of reasonable notice imposed by law
shall be deemed met if such notice is in writing and is mailed, transmitted by
facsimile or hand delivered to the Customer at least three business days prior
to the sale, disposition or other event giving rise to such notice requirement;
provided that the Bank shall not be required to give any prior notice to the
Customer in connection with the sale or other intended disposition of Collateral
that is of a type customarily sold on a recognized market or threatens to
decline speedily in value. Notwithstanding the realization by the Bank upon all
of the Collateral, unless the Bank has proposed that it retain the Collateral in
satisfaction of the Obligations and no written objection has been made thereto
within the time specified in any applicable section of the New York Uniform
Commercial Code, the Customer shall continue to be liable for any balance of the
Obligations (including interest to the date of payment) which shall thereafter
remain unpaid. For purposes of this Article VI, (i) the term "Bank" shall be
deemed to refer to all offices of Union Bank of Switzerland and (ii) references
to "Obligations" shall be deemed to include all obligations of the types
described in the definitions thereof owed to any office of Union Bank of
Switzerland.
(b) Lending Value of Collateral. The Customer understands and agrees that the
Customer must maintain Collateral in which the Bank has a first priority,
perfected security interest having a Lending Value, as defined below, equal to
not less than 100% of the principal of, interest on and all other amounts
payable in respect of the Obligations outstanding from time to time (including
without limitation, Obligations which have not yet matured or are contingent)
(the "Required Lending Value"), "Lending Value" shall mean the percentage set
forth on Schedule I of the fair market value, as determined by the Bank from
time to time, of the relevant class of Collateral (any item not listed to have
such Lending Value, if any, as the Bank may fix from time to time), subject, in
the case of any security which, under the circumstances, is covered by
Regulation U or Regulation X of the Federal Reserve Board, to any maximum margin
percentage imposed by such Regulations; provided that, notwithstanding Schedule
I, the Bank may change or eliminate the percentage applicable to any class of
Collateral at any time without prior notice to the Customer. The Customer agrees
immediately to deliver additional Collateral to the Bank to the extent that, at
any time, the aggregate Lending Value of the Collateral is less than the
Required Lending Value.
(c) Agreements and Representations Relating to Collateral. The Customer
represents and agrees that the Customer owns and will at all times own the
Collateral free and clear of any lien or other encumbrance other than the
security interest created hereby and that the Collateral will not at any time
include (i) securities the ownership of which is required to be reported under
Rule 13d-1 under the Securities Exchange Act of 1934 or (ii) "restricted
securities" as defined in Rule 144 under the Securities Act of 1933 or any other
security or other property that is subject to any restriction on the sale,
pledge or other disposition thereof under applicable law or under any agreement
or instrument to which the Customer is subject. If any portion of the Collateral
is held in an account managed on a discretionary basis by the Bank or any other
office or affiliate of Union Bank of Switzerland, the Customer (i) acknowledges
that the dual role of Union Bank of Switzerland and/or such affiliate as
creditor and discretionary manager could give rise to a potential conflict of
interest and (ii) consents to the performance by Union Bank of Switzerland
and/or such affiliate of that dual role. The Customer will, at the Customer's
expense and in such form as the Bank may require, execute, deliver, file and
record any financing statement, specific assignment or other paper and take any
other action that may be necessary or desirable, or that the Bank may request,
in order to create, preserve, perfect or validate the security interest created
hereby or to enable the Bank to exercise and enforce its rights hereunder or
under applicable law with respect to any of the Collateral.
(d) Margin Stock Representation. Each borrowing by the Customer will be deemed
to be a representation by the Customer that none of the proceeds will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, except to
the extent that the Borrower shall have expressly notified the Bank in writing
before such borrowing and the Bank shall have expressly consented thereto.
(e) Setoff. In addition to the Bank's security interest, it shall at all times
have a right to set off against the Obligations at or after the time at which
they become due, whether at stated maturity, by acceleration, upon demand or
otherwise, all collected funds at any time in any account maintained with the
Bank by or for the benefit of the Customer or other party obligated for the
Obligations, unless such account is clearly denominated in the Bank's records as
not being the Customer's or such other party's property, in which case such
right of setoff shall apply only to so much thereof as belongs to the Customer
or such other party. This right is in addition to, and not in limitation of, any
right the Bank may have at law or otherwise.
VII. General Provisions.
(a) Representations and Warranties. The Customer represents and warrants to the
Bank that (i) if it is purportedly a corporation, a limited partnership or a
general partnership, it is duly organized, validly existing and in good standing
as such under the laws of the jurisdiction of its organization, and has all
requisite power and authority to conduct its business as now conducted and to
own its properties, (ii) the Customer has full power and authority to enter into
this Agreement and the Note and to incur its obligations provided for herein and
therein, all of which have been duly authorized by all proper and necessary
action on the part of the Customer and (iii) this Agreement has been duly
executed and delivered by the Customer and constitutes, and (upon execution and
delivery thereof) the Note will constitute, a valid and legally binding
obligation of the Customer, enforceable against the Customer in accordance with
its terms, except as enforceability may be affected by bankruptcy, insolvency
and other laws relating to or affecting creditors' rights generally and by
general principles of equity. The Customer will be deemed to have made a
representation and warranty, on each date on which a Loan is made or a Letter of
Credit is issued, that the foregoing representations are true and correct on and
as of such date.
(b) Expenses; Indemnity. The Customer shall be liable to the Bank, and shall
promptly reimburse it on demand, for all expenses incurred by the Bank as a
result of any default or Event of Default hereunder, including reasonable fees
and disbursements of counsel and all expenses incurred in collection and in the
protection of its rights in respect of the Obligations (including all expenses
incurred in connection with any workout or any bankruptcy or similar proceedings
relating to the Customer). The Customer shall also reimburse the Bank from time
to time at the Bank's request for any out-of-pocket expenses incurred by the
Bank in connection with the Collateral and the Bank's security interest therein.
The Customer will indemnify the Bank and hold the Bank harmless from and against
all liabilities, losses, damages, costs and expenses (including settlement costs
and fees and disbursements of counsel) which may be incurred by the Bank in
connection with any investigative, administrative or judicial proceeding
relating to or arising out of this Agreement, any Loan, Letter of Credit or
other Obligation or any actual or proposed use of the proceeds of any Loan or
other Obligation, except to the extent resulting from the Bank's own bad faith
or willful misconduct.
(c) GOVERNING LAW; SUITS; JURY TRIAL. UNLESS OTHERWISE AGREED BY THE PARTIES IN
WRITING, ALL THE RIGHTS AND OBLIGATIONS OF THE BANK AND THE CUSTOMER WITH
RESPECT HERETO OR UNDER THE NOTE OR ANY OTHER DOCUMENT, AND WITH RESPECT TO ANY
OBLIGATION OR OTHER TRANSACTION OR RELATIONSHIP (ALL SUCH DOCUMENTS,
OBLIGATIONS, TRANSACTIONS AND RELATIONSHIPS BEING REFERRED TO HEREIN
COLLECTIVELY AS THE "RELATIONSHIP") SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW, AND SHALL BE BINDING UPON AND SHALL
INURE TO THE BENEFIT OF THE CUSTOMER, THE BANK AND THEIR RESPECTIVE HEIRS,
SUCCESSORS AND ASSIGNS. The Customer hereby submits to the nonexclusive in
personam jurisdiction of, and agrees that any action or proceeding related in
any way to the Relationship shall, if the Bank so chooses, be brought and
enforced in, the Supreme Court of the State of New York for New York County or
the United States District Court for the Southern District of New York and
hereby waives any objection to jurisdiction or venue in any such proceeding
commenced in said courts. The Customer hereby waives personal service of any
summons, complaint or other process and agrees that any process required to be
served on the Customer for purposes of any such proceeding may be served on the
Customer, with the same effect as personal service within the State of New York,
by certified mail or by courier service providing evidence of delivery addressed
to the Customer at the Customer's address for notices as provided in paragraph
VII(d) and shall be deemed to have been served when received or delivered at
such address. THE CUSTOMER AND THE BANK EACH HEREBY WAIVES TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THE RELATIONSHIP, OR ANY OTHER CLAIM OR DISPUTE WITH RESPECT HERETO OR THERETO
HOWSOEVER ARISING, TO WHICH THE CUSTOMER AND THE BANK ARE PARTIES. If any
provision hereof is invalid or unenforceable under applicable law, the other
provisions hereof shall remain in full force and effect. All rights and remedies
granted to the Bank hereunder, under any other document and under applicable law
shall be cumulative and may be exercised by the Bank from time to time.
(d) Waiver; Modification; Notices; Demands. No delay on the part of the Bank in
exercising any of its options, powers or rights, and no partial or single
exercise thereof, shall constitute a waiver thereof. No waiver of any rights
hereunder, or under any other document or applicable law, and no amendment or
modification hereof or thereof, shall be effective unless the same shall be in
writing, duly signed on behalf of the party against whom such waiver, if any,
shall apply only with respect to the specific instance involved, and, unless
otherwise expressly agreed to in writing, shall in no way impair the rights or
obligations of any party in any other respect at any other time. Any notice or
demand or request shall be in writing and shall be deemed to have been received
and shall be effective on the day on which delivered if (a) personally
delivered, (b) transmitted by telex, telecopier or telegram, or (c) mailed by
certified mail or sent by courier service providing evidence of delivery on the
date shown on any receipt or other evidence of delivery or refusal), and notices
transmitted as provided in clauses (b) or (c)(i) in the case of the Bank, shall
be addressed to the Bank at 299 Park Avenue, New York, New York 10171, or at any
other address designated by the Bank for such purpose in a notice given to the
notifying party in the manner herein provided, and (ii) in the case of the
Customer, shall be addressed to the Customer at the Customer's address set forth
below (or if none is set forth, at the Customer's address designated by the
Customer for such purpose in a notice given to the Bank in the manner
hereinabove provided. The Customer agrees that the Bank may act in connection
with any Loan, Letter of Credit or other Obligation upon instructions (whether
written or oral, and whether delivered by telephone, electronically or b other
means) which the Bank in good faith believes to be from the Customer or a person
authorized by the Customer.
(e) Additional Obligors. If this Agreement, the Note or any other document
pertaining to any Obligation is signed by more than one person, all signatories
shall be jointly and severally liable, and the word "Customer" herein shall be
deemed to refer to all such signatories, jointly, and to each individually, as
the context may require. If one or more other persons or entities (each a
"Guarantor") shall have guaranteed any Obligation, shall have provided
collateral security therefor or shall otherwise have incurred any fixed or
contingent, direct or indirect liability in respect thereof (or shall be
required to do any of the foregoing in accordance with Schedule I hereto or
otherwise), then for purposes of paragraphs III(d) and VII(a) hereof (i) the
word "Customer" shall be deemed to refer to the Customer named herein and each
Guarantor, jointly, and to each individually, as the context may require, and
(ii) as applied to each Guarantor, references to this Agreement and the Note
shall be deemed to refer to such guarantee, security agreement or other document
or instrument as such Guarantor shall have entered into with or for the benefit
of the Bank.
(f) Successors and Assigns. This Agreement shall inure to the benefit of, and
shall be enforceable by, the parties hereto and their respective successors and
assigns; provided that the Customer shall not assign any of its obligations
hereunder without the prior, written consent of the Bank. The Bank may assign
any of its rights hereunder or under the Note to any other office or affiliate
of Union Bank of Switzerland or to any Federal Reserve Bank.
(g) Cooperation; Additional Documentation. The Customer will execute all such
other documents, including without limitation any government form under margin
regulations, as the Bank may deem necessary or appropriate in connection with
any Obligation, and will cooperate with and assist the Bank in protecting and
realizing upon the Bank's rights and interests. The Customer will not utilize
any credit facility provided by the Bank unless the Customer shall have supplied
to the Bank appropriately completed account documents and such other
documentation as the Bank may request from time to time.
(h) Power of Attorney. The Customer hereby irrevocably appoints the Bank, and
any officer of the Bank designated by the Bank from time to time, with full
power of substitution, the Customer's attorney-in-fact with full power and
authority in the Customer's name and on the Customer's behalf, in such
attorney-in-fact's sole discretion, to exercise all rights and powers of the
Customer with respect to the Collateral and any Account and take any action to
preserve or realize upon the Bank's security interest, and otherwise to perform
any act which the Customer is obligated to perform hereunder.
(i) Other Relationships. This Agreement is intended to supersede any
inconsistent provision of any custody agreement, investment management
agreement, and other agreements between the Customer and the Bank which do not
directly relate to a credit transaction as herein contemplated.
<PAGE>
THE CUSTOMER HEREBY CONFIRMS THAT HE, SHE OR IT HAS READ THE
FOREGOING PROVISIONS AND THE CUSTOMER AND THE BANK
HEREBY AGREE TO BE BOUND BY SUCH PROVISIONS.
Date: _______________ Name of Customer:__________________________
Signature: __________________________
[Officer Name: __________________________
Title: __________________________]
Union Bank of Switzerland
New York Branch
By: __________________________
Title: __________________________
By: __________________________
Title: __________________________
