<PAGE> 1
As filed with the Securities and Exchange Commission on September 11, 1997
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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FIRST PALM BEACH BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 6712 65-0418027
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification No.)
Incorporation or Classification Code
Organization) Number)
450 SOUTH AUSTRALIAN AVENUE
WEST PALM BEACH, FLORIDA 33401
(561) 655-8511
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
LOUIS O. DAVIS, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FIRST PALM BEACH BANCORP, INC.
450 SOUTH AUSTRALIAN AVENUE
WEST PALM BEACH, FLORIDA 33401
(561) 655-8511
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
WITH COPIES TO:
FRANK M. CONNER III MITCHELL KLEINMAN
ALSTON & BIRD LLP BROWN & WOOD LLP
601 PENNSYLVANIA AVENUE, N.W. ONE WORLD TRADE CENTER
NORTH BUILDING, SUITE 250 NEW YORK, NEW YORK 10048
WASHINGTON, D.C. 20004 (212) 839-5300
(202) 508-3303
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE (1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series B 10.35% Senior $35,000,000 100% $35,000,000 $10,606.06
Debentures Due 2002
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE TIME UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SECTION 8(a), SHALL DETERMINE.
<PAGE> 2
SUBJECT TO COMPLETION DATED , 1997
FIRST PALM BEACH BANCORP, INC.
OFFER TO EXCHANGE ITS
SERIES B 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
TIME, ON , 1997, UNLESS EXTENDED
First Palm Beach Bancorp, Inc., a corporation organized under the laws of
the State of Delaware (the "Company"), hereby offers, upon the terms and subject
to the conditions set forth in this prospectus (as the same may be amended or
supplemented from time to time, the "Prospectus") and in the accompanying Letter
of Transmittal (which together constitute the "Exchange Offer"), to exchange up
to $35,000,000 aggregate principal amount of its Series B 10.35% Senior
Debentures Due 2002 (the "Exchange Senior Debentures") which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a Registration Statement (as defined herein) of which this
Prospectus constitutes a part, for a like principal amount of its outstanding
Series A 10.35% Senior Debentures Due 2002 (the "Original Senior Debentures"),
of which $35,000,000 aggregate principal amount is outstanding.
The terms of the Exchange Senior Debentures are identical in all material
respects to the respective terms of the Original Senior Debentures, except that
(i) the Exchange Senior Debentures have been registered under the Securities Act
and therefore will not be subject to certain restrictions on transfer applicable
to the Original Senior Debentures and (ii) the Exchange Senior Debentures will
not provide for any liquidated damages thereon. See "Description of Exchange
Senior Debentures" and "Description of Original Debentures." The Exchange Senior
Debentures are being offered for exchange in order to satisfy certain
obligations of the Company under the Registration Rights Agreement, dated as of
June 30, 1997 (the "Registration Agreement"), between the Company and the
Initial Purchaser (as defined herein). In the event that the Exchange Offer is
consummated, any Original Senior Debenture which remains outstanding after
consummation of the Exchange Offer and the Exchange Senior Debentures issued in
the Exchange Offer will vote together as a single class for purposes of
determining whether holders of the requisite percentage in outstanding principal
amount thereof have taken certain actions or exercised certain rights under the
Indenture, dated as of June 30, 1997, as amended and supplemented from time to
time (the "Indenture"), between the Company and The Bank of New York as Trustee
(the "Trustee").
(Continued on following page.)
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This Prospectus and the Letter of Transmittal are first being mailed to all
holders of Original Senior Debentures on or about , 1997.
SEE "RISK FACTORS" COMMENCING ON PAGE 13 FOR CERTAIN INFORMATION THAT
SHOULD BE CONSIDERED BY HOLDERS IN DECIDING WHETHER TO TENDER ORIGINAL SENIOR
DEBENTURES IN THE EXCHANGE OFFER.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A
BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
The date of this Prospectus is , 1997.
<PAGE> 3
The Original Senior Debentures, and the Exchange Senior Debentures when
issued, may be transferred only in a block having an aggregate principal amount
of not less than $100,000 (100 Senior Debentures). The Original Senior
Debentures and the Exchange Senior Debentures are referred to collectively
herein as the "Senior Debentures."
The Company is making the Exchange Offer of the Exchange Senior Debentures
in reliance on the position of the staff of the Division of Corporation Finance
of the Securities and Exchange Commission (the "Commission") as set forth in
certain interpretive letters addressed to third parties in other transactions.
However, the Company has not sought its own interpretive letter and there can be
no assurance that the staff of the Division of Corporation Finance of the
Commission would make a similar determination with respect to the Exchange
Senior Debentures as it has in such interpretive letters to third parties. Based
on these interpretations by the staff of the Division of Corporation Finance of
the Commission, and subject to the two immediately following sentences, the
Company believes that the Exchange Senior Debentures issued pursuant to this
Exchange Offer in exchange for Original Senior Debentures may be offered for
resale, resold and otherwise transferred by a holder thereof (other than a
holder who is a broker-dealer) without further compliance with the registration
and prospectus delivery requirements of the Securities Act, provided that such
Exchange Senior Debentures are acquired in the ordinary course of such holder's
business and that such holder is not participating, and has no arrangement or
understanding with any person to participate, in a distribution (within the
meaning of the Securities Act) of such Exchange Senior Debentures. However, any
holder of Original Senior Debentures who is an "affiliate" of the Company or who
intends to participate in the Exchange Offer for the purpose of distributing
Exchange Senior Debentures, or any broker-dealer who purchased Original Senior
Debentures from the Company to resell pursuant to Rule 144A under the Securities
Act ("Rule 144A") or any other available exemption under the Securities Act, (i)
will not be able to rely on the interpretations of the staff of the Division of
Corporation Finance of the Commission set forth in the above-mentioned
interpretive letters, (ii) will not be permitted or entitled to tender such
Original Senior Debentures in the Exchange Offer and (iii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or other transfer of such Original Senior Debentures
unless such sale is made pursuant to an exemption from such requirements. In
addition, as described below, if any broker-dealer holds Original Senior
Debentures acquired for its own account as a result of market-making or other
trading activities and exchanges such Original Senior Debentures for Exchange
Senior Debentures, then such broker-dealer must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of such
Exchange Senior Debentures.
Each holder of Original Senior Debentures who wishes to exchange Original
Senior Debentures for Exchange Senior Debentures in the Exchange Offer will be
required to represent that (i) it is not an "affiliate" of the Company, (ii) any
Exchange Senior Debentures to be received by it are being acquired in the
ordinary course of its business, (iii) it has no arrangement or understanding
with any person to participate in a distribution (within the meaning of the
Securities Act) of such Exchange Senior Debentures, and (iv) if such holder is
not a broker-dealer, such holder is not engaged in, and does not intend to
engage in, a distribution (within the meaning of the Securities Act) of such
Exchange Senior Debentures. In addition, the Company may require such holder, as
a condition to such holder's eligibility to participate in the Exchange Offer,
to furnish to the Company (or an agent thereof) in writing information as to the
number of "beneficial owners" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) on behalf of whom such holder holds
the Senior Debentures to be exchanged in the Exchange Offer. Each broker-dealer
that receives Exchange Senior Debentures for its own account pursuant to the
Exchange Offer must acknowledge that it acquired the Original Senior Debentures
for its own account as the result of market-making activities or other trading
activities and must agree that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Senior Debentures. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
Based on the position taken by the staff of the Division of Corporation Finance
of the Commission in the interpretive letters referred to above, the Company
believes that broker-dealers who acquired Original Senior Debentures for their
own accounts, as a result of market-making activities or other trading
activities ("Participating Broker-Dealers"), may fulfill their prospectus
delivery requirements with respect to the Exchange Senior Debentures received
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<PAGE> 4
upon exchange of such Original Senior Debentures (other than Original Senior
Debentures which represent an unsold allotment from the initial sale of the
Original Senior Debentures) with a prospectus meeting the requirements of the
Securities Act, which may be the prospectus prepared for an exchange offer so
long as it contains a description of the plan of distribution with respect to
the resale of such Exchange Senior Debentures. Accordingly this Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Senior Debentures received
in exchange for Original Senior Debentures acquired by such broker-dealer as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period ending at the close of business on the 90th day
following the Expiration Date (as described herein), it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution." However, a Participating Broker-Dealer who
intends to use this Prospectus in connection with the resale of Exchange Senior
Debentures received in exchange for Original Senior Debentures pursuant to the
Exchange Offer must notify the Company, or cause the Company to be notified, on
or prior to the Expiration Date, that it is a Participating Broker-Dealer. Such
notice may be given in the space provided for that purpose in the Letter of
Transmittal or may be delivered to The Bank of New York (the "Exchange Agent")
at one of the addresses set forth herein under "The Exchange Offer -- Exchange
Agent." Any Participating Broker-Dealer who is an "affiliate" of the Company may
not rely on the interpretive letters mentioned above and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. See "The Exchange Offer -- Resales of
Exchange Senior Debentures."
In that regard, each Participating Broker-Dealer who surrenders Original
Senior Debentures pursuant to the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal, that upon receipt of notice from the
Company of the occurrence of any event or the discovery of any fact which makes
any statement contained or incorporated by reference in this Prospectus untrue
in any material respect or which causes this Prospectus to omit to state a
material fact necessary in order to make the statements contained or
incorporated by reference herein, in light of the circumstances under which they
were made, not misleading or of the occurrence of certain other events specified
in the Registration Agreement, such Participating Broker-Dealer will suspend the
sale of Exchange Senior Debentures pursuant to this Prospectus until the Company
has amended or supplemented this Prospectus to correct such misstatement or
omission and has furnished copies of the amended or supplemented Prospectus to
such Participating Broker-Dealer, or the Company has given notice that the sale
of the Exchange Senior Debentures may be resumed, as the case may be. If the
Company gives such notice to suspend the sale of the Exchange Senior Debentures,
it shall extend the 90-day period referred to above during which Participating
Broker-Dealers are entitled to use this Prospectus in connection with the resale
of Exchange Senior Debentures by the number of days during the period from and
including the date of the giving of such notice to and including the date when
Participating Broker-Dealers shall have received copies of the amended or
supplemented Prospectus necessary to permit resales of the Exchange Senior
Debentures or to and including the date on which the Company has given notice
that the sale of Exchange Senior Debentures may be resumed, as the case may be.
Prior to the Exchange Offer, there has been only a limited secondary market
and no public market for the Original Senior Debentures. The Exchange Senior
Debentures will be a new issue of securities for which there currently is no
market. Although the Initial Purchaser has informed the Company that it
currently intends to make a market in the Exchange Senior Debentures, it is not
obligated to do so, and any such market making may be discontinued at any time
without notice. Accordingly, there can be no assurance as to the development or
liquidity of any market for the Exchange Senior Debentures. The Company
currently does not intend to apply for listing of the Exchange Senior Debentures
on any securities exchange or for quotation through the National Association of
Securities Dealers Automated Quotation System.
Any Original Senior Debentures not tendered and accepted in the Exchange
Offer will remain outstanding and will be entitled to all the same rights and
will be subject to the same limitations applicable thereto under the Indenture
(except for those rights which terminate upon consummation of the Exchange
Offer). Following consummation of the Exchange Offer, the holders of Original
Senior Debentures will continue to be subject to all of the existing
restrictions upon transfer thereof and the Company will not have any further
obligation to such holders (other than under certain limited circumstances) to
provide for
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<PAGE> 5
registration under the Securities Act of the Original Senior Debentures held by
them. To the extent that Original Senior Debentures are tendered and accepted in
the Exchange Offer, a holder's ability to sell untendered Original Senior
Debentures could be adversely affected. See "Risk Factors -- Consequences of a
Failure to Exchange Original Senior Debentures."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF ORIGINAL SENIOR DEBENTURES ARE URGED TO READ THIS
PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING
WHETHER TO TENDER THEIR ORIGINAL SENIOR DEBENTURES PURSUANT TO THE EXCHANGE
OFFER.
Original Senior Debentures may be tendered for exchange on or prior to 5:00
p.m., New York City time, on , 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is extended
by the Company (in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended). Tenders of Original
Senior Debentures may be withdrawn at any time on or prior to the Expiration
Date. The Exchange Offer is not conditioned upon any minimum principal amount of
Original Senior Debentures being tendered for exchange. However, the Exchange
Offer is subject to certain events and conditions which may be waived by the
Company and to the terms and provisions of the Registration Agreement. Original
Senior Debentures may be tendered in whole or in part having an aggregate
principal amount of not less than $100,000 (100 Senior Debentures) or any
integral multiple of $1,000 principal amount (one Senior Debenture) in excess
thereof. The Company as Issuer of the Exchange Senior Debentures has agreed to
pay all expenses of the Exchange Offer. See "The Exchange Offer -- Fees and
Expenses." Holders of the Original Senior Debentures whose Original Senior
Debentures are accepted for exchange will not receive interest on such Original
Senior Debentures and will be deemed to have waived the right to receive any
interest on such Original Senior Debentures accumulated from and after June 30,
1997. See "The Exchange Offer -- Interest Payments on Exchange Senior
Debentures."
The Company will not receive any cash proceeds from the issuance of the
Exchange Senior Debentures offered hereby. No dealer-manager is being used in
connection with this Exchange Offer. See "Use of Proceeds" and "Plan of
Distribution."
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THIS EXCHANGE
OFFER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR A SOLICITATION
BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
THE ORIGINAL SENIOR DEBENTURES HAVE BEEN ISSUED AND THE EXCHANGE SENIOR
DEBENTURES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY TRANSFER OF SENIOR
DEBENTURES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SENIOR DEBENTURES FOR
ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PAYMENTS OF INTEREST ON
SUCH SENIOR DEBENTURES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN SUCH SENIOR DEBENTURES.
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<PAGE> 6
THIS PROSPECTUS CONTAINS CERTAIN FORWARD-LOOKING STATEMENTS WITH RESPECT TO
THE FINANCIAL CONDITION, RESULTS OF OPERATIONS AND BUSINESS OF THE COMPANY
WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 WHICH
INVOLVE ESTIMATES, ASSUMPTIONS, RISKS AND UNCERTAINTIES. FACTORS THAT MAY CAUSE
ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE CONTEMPLATED BY SUCH
FORWARD-LOOKING STATEMENTS INCLUDE, AMONG OTHERS, THE FOLLOWING POSSIBILITIES:
(I) GENERAL ECONOMIC CONDITIONS, EITHER NATIONAL OR REGIONAL, ARE LESS FAVORABLE
THAN EXPECTED, RESULTING IN, AMONG OTHER THINGS, A DETERIORATION IN CREDIT
QUALITY; (II) COMPETITIVE PRESSURE IN THE BANKING INDUSTRY INCREASES
SIGNIFICANTLY; (III) CHANGES IN THE INTEREST RATE ENVIRONMENT REDUCE MARGINS;
(IV) CHANGES OCCUR IN THE REGULATORY ENVIRONMENT; (V) CHANGES OCCUR IN BUSINESS
CONDITIONS AND INFLATION; AND (VI) WITH RESPECT TO THE INDIRECT AUTOMOBILE
LENDING PORTFOLIO OF THE COMPANY, (A) UNANTICIPATED CHANGES IN THE NUMBER OF
REPOSSESSIONS AND THE LOAN BALANCES OUTSTANDING AT THE TIME OF REPOSSESSIONS,
(B) UNANTICIPATED CHANGES IN THE RESALE VALUE OF REPOSSESSED AUTOMOBILES, AND
(C) UNANTICIPATED CHANGES IN THE ABILITY OF THE BORROWERS TO MAINTAIN INSURANCE
ON THE COLLATERAL SECURING THE COMPANY'S LOANS, THE COST OF SUCH INSURANCE AND
THE ABILITY TO RECOVER INSURANCE PROCEEDS.
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<PAGE> 7
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information may be
inspected and copied at prescribed rates at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's regional offices at 7 World Trade Center,
13th Floor, Suite 1300, New York, New York 10048 and Suite 1400, Citicorp
Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material may also be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Such information may also be accessed electronically by means of the
Commission's home page on the Internet (http://www.sec.gov.). The Company's
common stock is traded on the Nasdaq National Market System. Such reports, proxy
statements and other information concerning the Company may also be inspected at
the offices of the National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington D.C. 20006.
This Prospectus constitutes a part of a registration statement on Form S-4
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act. This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission, and reference is
hereby made to the Registration Statement and to the exhibits relating thereto
for further information with respect to the Company and the Exchange Senior
Debentures. Any statements contained herein concerning the provisions of any
document are not necessarily complete, and, in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to Section 13 of the Exchange Act are incorporated into this Prospectus by
reference (Commission File No.0-21942):
1. The Company's Annual Report on Form 10-K for the year ended September
30, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1996, March 31, 1997 and June 30, 1997; and
3. The Company's Current Reports on Form 8-K dated October 21, 1996,
December 16, 1996, and July 3, 1997.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering of the Exchange Senior Debentures offered hereby
shall be deemed to be incorporated by reference into this Prospectus and to be a
part of this Prospectus from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus,
including the documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of any
contract or other document referred to herein do not purport to be complete, and
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document. The Company will provide
without charge to any person to whom this Prospectus is delivered, on the
written or oral request of such person, a copy of any or all of the foregoing
documents incorporated by reference herein (other than exhibits not specifically
incorporated by reference into the texts of such documents). Requests for such
documents should be directed to: First Palm Beach Bancorp, Inc., 450 S.
Australian Avenue, West Palm Beach, Florida 33401. Telephone requests may be
directed to R. Randy Guemple, Executive Vice President, at (561) 650-2425.
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<PAGE> 8
SUMMARY
The following is a summary of certain information contained in this
Prospectus and the documents incorporated herein by reference. This summary is
not intended to be a complete description of the matters covered in this
Prospectus and is qualified in its entirety by the more detailed information
appearing elsewhere or incorporated by reference in this Prospectus. As used in
this Prospectus, the term "Company" refers to First Palm Beach Bancorp, Inc. and
where the context requires, its subsidiaries.
FIRST PALM BEACH BANCORP, INC.
The Company is a Delaware chartered savings and loan holding company,
headquartered in West Palm Beach, Florida. Through its wholly owned subsidiary,
First Bank of Florida, a federally-chartered stock savings and loan association
(the "Bank"), the Company operates 45 banking offices (of which 19 are
supermarket branches and 26 are stand-alone branches) located in Palm Beach,
Broward, Dade, Martin and Lee Counties in Florida, and three mortgage loan
production offices, two of which are located in Palm Beach County and one of
which is located in Broward County. At June 30, 1997, the Company had total
consolidated assets of approximately $1.7 billion, deposits of approximately
$1.2 billion and stockholders' equity of approximately $109.5 million. The
Company is the largest, based on total deposits, and oldest independent
financial institution based in Palm Beach County.
Of the 45 banking offices currently operated by the Bank, 41 of such
offices are located in Palm Beach, Broward and Dade Counties. Based on deposit
information provided by the Florida Bankers Association, such counties have a
respective share of the state deposit market of 9.16%, 11.76% and 19.38%, for a
total of approximately 40.3% of the Florida deposit market share. In addition,
based on information provided by the Bureau of Economic and Business Research,
University of Florida, such three counties represent, respectively, 6.81%, 9.66%
and 14.18% of the state population for a total of approximately 30.65% of the
Florida population.
The Bank's principal business is attracting retail deposits from the
general public and investing those deposits, together with funds generated from
operations and borrowings, primarily in one- to four-family, owner-occupied,
residential mortgage loans and, to a lesser extent, consumer loans, construction
loans, commercial real estate loans and multi-family residential mortgage loans.
In addition, the Bank invests in mortgage-backed and related securities,
securities issued by the U.S. Government and agencies thereof, and other
investments in which the Bank is permitted to invest under federal laws and
regulations.
The principal executive offices of the Company are located at 450 S.
Australian Avenue, West Palm Beach, Florida 33401 and its telephone number at
such address is (561) 655-8511.
The Company is a legal entity, separate and distinct from its subsidiaries.
The ability of holders of debt and equity securities of the Company to benefit
from the distribution of assets of any subsidiary upon the liquidation or
reorganization of such subsidiary is subordinate to prior claims of creditors of
the subsidiary (including depositors in the case of banking subsidiaries),
except to the extent that a claim of the Company as a creditor may be
recognized.
For additional information with respect to the Company, see "Available
Information," "Incorporation of Certain Documents by Reference," "Risk Factors,"
and "Selected Consolidated Financial Data."
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<PAGE> 9
THE EXCHANGE OFFER
The Exchange Offer............ Up to $35,000,000 aggregate principal amount of
Exchange Senior Debentures are being offered in
exchange for a like aggregate principal amount
of Original Senior Debentures. Original Senior
Debentures may be tendered for exchange in
whole or in part in a principal amount of
$100,000 (100 Senior Debentures) or any
integral multiple of $1,000 (one Senior
Debenture) in excess thereof. The Company is
making the Exchange Offer in order to satisfy
its obligations under the Registration
Agreement relating to the Original Senior
Debentures. For a description of the procedures
for tendering Original Senior Debentures, see
"The Exchange Offer -- Procedures for Tendering
Original Senior Debentures."
Expiration Date............... At 5:00 p.m., New York City time, on
, 1997, unless the Exchange Offer
is extended by the Company (in which case the
Expiration Date will be the latest date and
time to which the Exchange Offer is extended).
See "The Exchange Offer -- Expiration Date;
Extensions; Amendments."
Conditions to the Exchange
Offer......................... The Exchange Offer is subject to certain
conditions, which may be waived by the Company
in its sole discretion. The Exchange Offer is
not conditioned upon any minimum principal
amount of Original Senior Debentures being
tendered. See "The Exchange Offer -- Conditions
to the Exchange Offer."
Terms of the Exchange Offer... The Company reserves the right in its sole and
absolute discretion, subject to applicable law,
at any time and from time to time, (i) to delay
the acceptance of the Original Senior
Debentures for exchange, (ii) to terminate the
Exchange Offer if certain specified conditions
have not been satisfied, (iii) to extend the
Expiration Date of the Exchange Offer and
retain all Original Senior Debentures tendered
pursuant to the Exchange Offer, subject,
however, to the right of holders of Original
Senior Debentures to withdraw their tendered
Original Senior Debentures, or (iv) to waive
any condition or otherwise amend the terms of
the Exchange Offer in any respect. See "The
Exchange Offer -- Terms of the Exchange Offer."
Withdrawal of Rights.......... Tenders of Original Senior Debentures may be
withdrawn at any time on or prior to the
Expiration Date by delivering a written notice
of such withdrawal to the Exchange Agent in
conformity with certain procedures set forth
below under "The Exchange Offer -- Withdrawal
Rights."
Procedures for Tendering
Original Senior Debentures.... Certain brokers, dealers, commercial banks,
trust companies and other nominees who hold
Original Senior Debentures through The
Depository Trust Company ("DTC") must effect
tenders by book-entry transfer through DTC's
Automated Tender Offer Program ("ATOP").
Beneficial owners of Original Senior Debentures
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee
are urged to contact such person promptly if
they wish to tender Original Senior Debentures
pursuant to the Exchange Offer. Tendering
holders of Original Senior Debentures that do
not use ATOP must complete and sign a Letter
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<PAGE> 10
of Transmittal in accordance with the
instructions contained therein and forward the
same by mail, facsimile or hand delivery,
together with any other required documents, to
the Exchange Agent, either with the
certificates of the Original Senior Debentures
to be tendered or in compliance with the
specified procedures for guaranteed delivery of
Original Senior Debentures. Tendering holders
of Original Senior Debentures that use ATOP
will, by so doing, acknowledge that they are
bound by the terms of the Letter of
Transmittal. See "The Exchange
Offer -- Procedures for Tendering Original
Senior Debentures." Letters of Transmittal and
certificates representing Original Senior
Debentures should not be sent to the Company.
Such documents should only be sent to the
Exchange Agent.
Resales of Exchange Senior
Debentures.................. The Company is making the Exchange Offer in
reliance on the position of the staff of the
Division of Corporation Finance of the
Commission as set forth in certain interpretive
letters addressed to third parties in other
transactions. However, the Company has not
sought its own interpretive letter and there
can be no assurance that the staff of the
Division of Corporation Finance of the
Commission would make a similar determination
with respect to the Exchange Offer as it has in
such interpretive letters to third parties.
Based on these interpretations by the staff of
the Division of Corporation Finance of the
Commission, and subject to the two immediately
following sentences, the Company believes that
Exchange Senior Debentures issued pursuant to
this Exchange Offer in exchange for Original
Senior Debentures may be offered for resale,
resold and otherwise transferred by a holder
thereof (other than a holder who is a
broker-dealer) without further compliance with
the registration and prospectus delivery
requirements of the Securities Act, provided
that such Exchange Senior Debentures are
acquired in the ordinary course of such
holder's business and that such holder is not
participating, and has no arrangement or
understanding with any person to participate,
in a distribution (within the meaning of the
Securities Act) of such Exchange Senior
Debentures. However, any holder of Original
Senior Debentures who is an "affiliate" of the
Company or who intends to participate in the
Exchange Offer for the purpose of distributing
the Exchange Senior Debentures, or any
broker-dealer who purchased the Original Senior
Debentures from the Company to resell pursuant
to Rule 144A or any other available exemption
under the Securities Act, (i) will not be able
to rely on the interpretations of the staff of
the Division of Corporation Finance of the
Commission set forth in the above-mentioned
interpretive letters, (ii) will not be
permitted or entitled to tender such Original
Senior Debentures in the Exchange Offer, and
(iii) must comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with any sale or
other transfer of such Original Senior
Debentures unless such sale is made pursuant to
an exemption from such requirements. In
addition, as described below, if any
broker-dealer holds Original Senior Debentures
acquired for its
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<PAGE> 11
own account as a result of market-making or
other trading activities and exchanges such
Original Senior Debentures for Exchange Senior
Debentures, then such broker-dealer must
deliver a prospectus meeting the requirements
of the Securities Act in connection with any
resales of such Exchange Senior Debentures.
Each holder of Original Senior Debentures who
wishes to exchange Original Senior Debentures
for Exchange Senior Debentures in the Exchange
Offer will be required to represent that (i) it
is not an "affiliate" of the Company, (ii) any
Exchange Senior Debentures to be received by it
are being acquired in the ordinary course of
its business, (iii) it has no arrangement or
understanding with any person to participate in
a distribution (within the meaning of the
Securities Act) of such Exchange Senior
Debentures, and (iv) if such holder is not a
broker-dealer, such holder is not engaged in,
and does not intend to engage in, a
distribution (within the meaning of the
Securities Act) of such Exchange Senior
Debentures. Each broker-dealer that receives
Exchange Senior Debentures for its own account
in exchange for Original Senior Debentures,
where such Original Senior Debentures were
acquired by such broker-dealer as a result of
market-making activities or other trading
activities, must acknowledge that it will
deliver a prospectus meeting the requirements
of the Securities Act in connection with any
resale of such Exchange Senior Debentures. The
Letter of Transmittal states that, by so
acknowledging and by delivering such a
prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the
meaning of the Securities Act. Based on the
position taken by the staff of the Division of
Corporation Finance of the Commission in the
interpretive letters referred to above, the
Company believes that Participating
Broker-Dealers who acquired Original Senior
Debentures for their own accounts as a result
of market-making activities or other trading
activities may fulfill their prospectus
delivery requirements with respect to the
Exchange Senior Debentures received upon
exchange of such Original Senior Debentures
(other than Original Senior Debentures which
represent an unsold allotment from the initial
sale of the Original Senior Debentures) with a
prospectus meeting the requirements of the
Securities Act, which may be the prospectus
prepared for an exchange offer so long as it
contains a description of the plan of
distribution with respect to the resale of such
Exchange Senior Debentures. Accordingly, this
Prospectus, as it may be amended or
supplemented from time to time, may be used by
a Participating Broker-Dealer in connection
with resales of Exchange Senior Debentures
received in exchange for Original Senior
Debentures where such Original Senior
Debentures were acquired by such Participating
Broker-Dealer for its own account as a result
of market-making or other trading activities.
Subject to certain provisions set forth in the
Registration Agreement and to the limitations
described below under "The Exchange
Offer -- Resales of Exchange Senior
Debentures," the Company has agreed that this
Prospectus, as it may be amended or
supplemented from time to time, may be used by
a Participating Broker-Dealer in connection
with resales of such Exchange Senior
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<PAGE> 12
Debentures for a period ending 90 days after
the Expiration Date (subject to extension under
certain limited circumstances) or, if earlier,
when all such Exchange Senior Debentures have
been disposed of by such Participating
Broker-Dealer. See "Plan of Distribution." Any
Participating Broker-Dealer who is an
"affiliate" of the Company may not rely on such
interpretive letters and must comply with the
registration and prospectus delivery
requirements of the Securities Act in
connection with any resale transaction. See
"The Exchange Offer -- Resales of Exchange
Senior Debentures."
Exchange Agent................ The Exchange Agent with respect to the Exchange
Offer is The Bank of New York. The addresses,
and telephone and facsimile numbers, of the
Exchange Agent are set forth in "The Exchange
Offer -- Exchange Agent" and in the Letter of
Transmittal.
Use of Proceeds............... The Company will not receive any cash proceeds
from the issuance of the Exchange Senior
Debentures offered hereby. The Company received
$34,125,000 in cash proceeds in conjunction
with the issuance of the Original Senior
Debentures. Of these proceeds, $25,000,000 were
contributed to the Bank, $250,000 were used to
satisfy related issuance costs, and the
remaining proceeds were used for general
corporate purposes.
The Exchange Senior Debentures
Offered..................... Up to $35,000,000 aggregate principal amount of
the Company's Exchange Senior Debentures which
have been registered under the Securities Act
(amount $1,000 per Exchange Senior Debenture).
The Exchange Senior Debentures will be issued
and the Original Senior Debentures were issued
under the Indenture. The Exchange Senior
Debentures and any Original Senior Debentures
which remain outstanding after consummation of
the Exchange Offer will vote together as a
single class for purposes of determining
whether holders of the requisite percentage in
outstanding principal amount thereof have taken
certain actions or exercised certain rights
under the Indenture. See "Description of
Exchange Senior Debentures -- Modification of
Indenture." The terms of the Exchange Senior
Debentures are identical in all material
respects to the terms of the Original Senior
Debentures, except that the Exchange Senior
Debentures have been registered under the
Securities Act, and they will not provide for
any increase in the interest thereon, except
under limited circumstances. See "The Exchange
Offer -- Purpose of the Exchange Offer,"
"Description of Exchange Senior Debentures" and
"Description of Original Senior Debentures."
Interest Payment Dates........ June 30 and December 31 of each year,
commencing December 31, 1997.
Ranking....................... The Exchange Senior Debentures will rank pari
passu, and payments thereon will be made pro
rata, with the Original Senior Debentures and
all existing and future unsubordinated
indebtedness of the Company. In addition,
because the Company is a holding company, the
Exchange Senior Debentures are effectively
subordinated to all existing and future
liabilities of the Company's
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<PAGE> 13
subsidiaries, including the Bank's deposit
liabilities. See "Description of Exchange
Senior Debentures."
Rating ....................... The Exchange Senior Debentures are expected to
be rated "BB-" by Fitchs Investors Service,
L.P. A security rating is not a recommendation
to buy, sell or hold securities and may be
subject to revision or withdrawal at any time
by the assigning rating organization.
Transfer Restrictions......... The Exchange Senior Debentures will be issued,
and may be transferred, only in blocks having a
principal amount of not less than $100,000 (100
Senior Debentures). Any transfer of Exchange
Senior Debentures in a block having a principal
amount of less than $100,000 shall be deemed to
be void and of no legal effect whatsoever. See
"Description of Exchange Senior Debentures --
Restrictions on Transfer."
Absence of Market for the
Exchange Senior Debentures.... The Exchange Senior Debentures will be a new
issue of securities for which there currently
is no market. Although Keefe, Bruyette & Woods,
Inc., the initial purchaser of the Original
Senior Debentures (the "Initial Purchaser"),
has informed the Company that it currently
intends to make a market in the Exchange Senior
Debentures, it is not obligated to do so, and
any such market making may be discontinued at
any time without notice. Accordingly, there can
be no assurance as to the development or
liquidity of any market for the Exchange Senior
Debentures. The Company does not intend to
apply for listing of the Exchange Senior
Debentures on any securities exchange or for
quotation through the National Association of
Securities Dealers Automated Quotation System.
See "Plan of Distribution."
Risk Factors.................. Prospective investors should carefully consider
the matters set forth below under "Risk
Factors."
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<PAGE> 14
RISK FACTORS
Prospective investors should consider carefully, in addition to the other
information contained in this Prospectus, the following factors in connection
with the Exchange Offer and the Exchange Senior Debentures offered hereby.
RANKING OF EXCHANGE SENIOR DEBENTURES
The Senior Debentures will represent the only borrowings of the Company
outstanding at the parent level at the completion of the Exchange Offer. The
Indenture permits the Company or its Subsidiaries (as defined below) to incur
additional indebtedness at the parent or subsidiary level in the event the
indebtedness does not exceed certain levels of Consolidated Net Worth (as
defined below). See "Description of Exchange Senior Debentures -- Covenants of
the Company." Because the Company is a holding company, the right of the Company
to participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability of
holders of the Senior Debentures to benefit indirectly from such distribution)
is subject to the prior claims of creditors of that subsidiary (including
depositors in the case of the Bank), except to the extent that the Company may
itself be recognized as a creditor of that subsidiary. At June 30, 1997, the
subsidiaries of the Company had total liabilities (excluding liabilities owed to
the Company) of approximately $1.5 billion, including deposits. Accordingly, the
Senior Debentures will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and holders of Senior Debentures
should look only to the assets of the Company for payments on the Senior
Debentures.
In addition, as the Company is a non-operating holding company almost all
of the operating assets of the Company are owned by the Company's subsidiaries.
The Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations and corporate expenses. The Bank is subject to certain restrictions
imposed by federal law on any extensions of credit to, and certain other
transactions with, the Company and certain other affiliates, and on investments
in stock or other securities thereof. Such restrictions prevent the Company and
such other affiliates from borrowing from the Bank unless the loans are secured
by various types of collateral. Further, such secured loans, other transactions
and investments by the Bank are generally limited in amount as to the Company
and as to each of such other affiliates to 10% of such Bank's capital and
surplus and as to the Company and all of such other affiliates to an aggregate
of 20% of such Bank's capital and surplus. In addition, payment of dividends to
the Company by the subsidiary bank is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires approval by banking regulatory authorities. At June 30,
1997, the Bank (without regard to limitations set forth in the Indenture and
prior to the contribution of $25 million to the capital of the Bank) could have
declared additional dividends to the Company without prior regulatory approval
of approximately $22 million. Federal and state regulatory agencies also have
the authority to limit further the Bank's payment of dividends based on other
factors, such as the maintenance of adequate capital for the Bank, which could
reduce the amount of dividends otherwise payable.
CONSEQUENCES OF A FAILURE TO EXCHANGE ORIGINAL SENIOR DEBENTURES
The Original Senior Debentures have not been registered under the
Securities Act or any state securities laws and therefore may not be offered,
sold or otherwise transferred except in compliance with the registration
requirements of the Securities Act and any other applicable securities laws, or
pursuant to an exemption therefrom or in a transaction not subject thereto, and
in each case in compliance with certain other conditions and restrictions.
Original Senior Debentures which remain outstanding after consummation of the
Exchange Offer will continue to bear a legend reflecting such restrictions on
transfer. In addition, upon consummation of the Exchange Offer, holders of
Original Senior Debentures which remain outstanding will not be entitled to any
rights to have such Original Senior Debentures registered under the Securities
Act or to any similar rights under the Registration Agreement (subject to
certain limited exceptions). The Company does not intend to register under the
Securities Act any Original Senior Debentures which remain outstanding after
consummation of the Exchange Offer (subject to such limited exceptions, if
applicable). To the extent that Original
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<PAGE> 15
Senior Debentures are tendered and accepted in the Exchange Offer, a holder's
ability to sell untendered Original Senior Debentures could be adversely
affected.
The Exchange Senior Debentures and any Original Senior Debentures which
remain outstanding after consummation of the Exchange Offer will vote and
consent together as a single class for purposes of determining whether holders
of the requisite percentage in outstanding principal amount thereof have taken
certain actions or exercised certain rights under the Indenture. See
"Description of Exchange Senior Debentures -- Modification of Indenture."
Pursuant to the Registration Agreement, holders of the Original Senior
Debentures are entitled to receive liquidated damages in the form of additional
interest under certain circumstances. Upon consummation of the Exchange Offer,
holders of Original Senior Debentures will not be entitled to any such
additional interest or any further registration rights under the Registration
Agreement, except under limited circumstances. See "Description of Original
Senior Debentures."
ABSENCE OF PUBLIC MARKET
The Original Senior Debentures were issued to, and the Company believes
such securities are currently owned by, a relatively small number of beneficial
owners. The Original Senior Debentures have not been registered under the
Securities Act and will be subject to restrictions on transferability if they
are not exchanged for the Exchange Senior Debentures. Although the Exchange
Senior Debentures may be resold or otherwise transferred by the holders (who are
not affiliates of the Company) without compliance with the registration
requirements under the Securities Act, they will constitute a new issue of
securities with no established trading market. Senior Debentures may be
transferred by the holders thereof only in blocks having a principal amount of
not less than $100,000 (100 Senior Debentures). The Company has been informed by
the Initial Purchaser that the Initial Purchaser intends to make a market in the
Exchange Senior Debentures. However, the Initial Purchaser is not obligated to
do so and any such market-making activity may be terminated at any time without
notice to the holders of the Exchange Senior Debentures. In addition, such
market-making activity will be subject to the limits of the Securities Act and
may be limited during the pendency of the Exchange Offer. Accordingly, no
assurance can be given that an active public or other market will develop for
the Exchange Senior Debentures or the Original Senior Debentures, or as to the
liquidity of or the trading market for the Exchange Senior Debentures or the
Original Senior Debentures. If an active public market does not develop, the
market price and liquidity of the Exchange Senior Debentures may be adversely
affected.
If a public trading market develops for the Exchange Senior Debentures,
future trading prices of the Senior Debentures will depend on many factors,
including, among other things, prevailing interest rates, the Company's
operating results, and the market for similar securities. Depending on these and
other factors, the Exchange Senior Debentures may trade at a discount.
Notwithstanding the registration of the Exchange Senior Debentures in the
Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of the
Securities Act) of the Company may publicly offer for sale or resell the
Exchange Senior Debentures only in compliance with the provisions of Rule 144
under the Securities Act.
Each broker-dealer that receives Exchange Senior Debentures for its own
account in exchange for Original Senior Debentures, where such Original Senior
Debentures were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Senior Debentures. See
"Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Subject to the conditions set forth under "The Exchange Offer -- Conditions
to the Exchange Offer," issuance of the Exchange Senior Debentures in exchange
for Original Senior Debentures pursuant to the Exchange Offer will be made only
after a timely receipt by the Company of (i) a book-entry confirmation (as
defined below) evidencing the tender of such Original Senior Debentures through
ATOP or (ii) certificates
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<PAGE> 16
representing such Original Senior Debentures, a properly completed and duly
executed Letter of Transmittal, with any required signature guarantees, and all
other required documents. See "The Exchange Offer -- Acceptance for Exchange and
Issuance of Senior Debentures" and "-- Procedures for Tendering Original Senior
Debentures." Therefore, holders of the Original Senior Debentures desiring to
tender such Original Senior Debentures in exchange for Exchange Senior
Debentures should allow sufficient time to ensure timely delivery. The Company
is not under any duty to give notification of defects or irregularities with
respect to the tenders of Original Senior Debentures for exchange.
LOSSES IN INDIRECT AUTOMOBILE LENDING PORTFOLIO
During fiscal years 1995 and 1996, the Bank significantly increased its
level of indirect lending through automobile dealers. Indirect lending
represented 66% and 83% of consumer loan production in fiscal years 1995 and
1996, respectively. These types of indirect loans carry more credit risk and
produce higher charge-off and delinquency rates than other consumer loans.
Primarily during the latter part of the fiscal year ended September 30, 1996,
higher than anticipated charge-offs were experienced in the indirect automobile
lending portfolio. As a result of management's analysis of repossession activity
and loss rates on sales of repossessed automobiles, the Bank recorded a
provision of $16.4 million, primarily related to indirect automobile loans,
during the fiscal year ended September 30, 1996. The total allowance for loan
losses related to indirect automobile loans at September 30, 1996 and June 30,
1997 was $9.0 million and $4.0 million, respectively, compared to outstanding
indirect loan balances of $148.2 million and $101.7 million, respectively, at
such dates. No new applications for indirect loans have been accepted since
September 30, 1996. While management believes it has established an adequate
allowance for loan losses, there can be no assurance that the Bank will not have
to increase its level of loan loss allowance or otherwise implement corrective
action or that regulators, in reviewing the Bank's loan portfolio or operations,
will not request that the Bank increase its allowance for loan losses or
otherwise implement corrective action, thereby negatively affecting the Bank's
financial condition and earnings.
FIRST PALM BEACH BANCORP, INC.
The Company is a Delaware chartered savings and loan holding company,
headquartered in West Palm Beach, Florida. Through its wholly owned subsidiary,
the Bank, the Company operates 45 banking offices (of which 19 are supermarket
branches and 26 are stand-alone branches) located in Palm Beach, Broward, Dade,
Martin and Lee Counties in Florida, and three mortgage loan production offices,
two of which are located in Palm Beach County and one of which is located in
Broward County. At June 30, 1997, the Company had total consolidated assets of
approximately $1.7 billion, deposits of approximately $1.2 billion and
stockholders' equity of approximately $109.5 million. The Company is the
largest, based on total deposits, and oldest independent financial institution
based in Palm Beach County.
Of the 45 banking offices currently operated by the Bank, 41 of such
offices are located in Palm Beach, Broward and Dade Counties. Based on deposit
information provided by the Florida Bankers Association, such counties have a
respective share of the state deposit market of 9.16%, 11.76% and 19.38%, for a
total of approximately 40.3% of the Florida deposit market share. In addition,
based on information provided by the Bureau of Economic and Business Research,
University of Florida, such three counties represent, respectively, 6.81%, 9.66%
and 14.18% of the state population for a total of approximately 30.65% of the
Florida population.
The Bank's principal business is attracting retail deposits from the
general public and investing those deposits, together with funds generated from
operations and borrowings, primarily in one- to four-family, owner-occupied,
residential mortgage loans and, to a lesser extent, consumer loans, construction
loans, commercial real estate loans and multi-family residential mortgage loans.
In addition, the Bank invests in mortgage-backed and related securities,
securities issued by the U.S. Government and agencies thereof, and other
investments in which the Bank is permitted to invest under federal laws and
regulations.
The Company was organized in 1993 to serve as a holding company for the
Bank, originally organized in 1934 as a federally-chartered mutual savings and
loan association, and which converted, effective September 29, 1993, to a
federally-chartered stock savings and loan association in connection with its
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<PAGE> 17
conversion to stock form and concurrent acquisition by the Company (the
"Conversion"). Since the Conversion, management's strategy has been to
capitalize on the growth in its five-county market area through redeploying the
capital raised in the Conversion in a manner enhancing stockholder value by (i)
emphasizing consumer and retail banking services in its five-county market area
and (ii) expanding its branch network by opening 29 new branch offices, of which
19 are supermarket branches and ten are stand-alone branches.
In emphasizing retail banking, the Company has increased its one- to
four-family residential mortgage loan originations from $126.0 million in fiscal
year 1994 to $192.5 million in fiscal year 1996. At June 30, 1997, the Bank had
one- to four-family residential mortgage loans totaling $804.3 million,
constituting approximately 68% of the Bank's total loan portfolio at such date.
As of June 30, 1997, adjustable rate mortgage loans comprised approximately 51%
of outstanding mortgage loans. In addition, the Bank's consumer loan portfolio
increased from $48.6 million at September 30, 1994 to $159.9 million at June 30,
1997.
The Company has also increased the number of branch offices from 16 at
September 30, 1993 to 45 as of the date of this Prospectus, including, during
fiscal year 1996, opening nine new offices and acquiring two additional offices
through the acquisition of an unaffiliated thrift institution, and during fiscal
year 1997, opening 12 new offices. The Company is scheduled to open two
additional offices during the remainder of fiscal year 1997. Of the 29 offices
opened since the Conversion, 19 have been located in supermarkets (four in Winn
Dixie Supermarkets and 15 in Albertsons Supermarkets). It is anticipated that
the two offices to be opened during the remainder of fiscal year 1997 will also
be located in Albertsons Supermarkets. While the branch network expansion has
entailed, and will continue to entail, significant capital investment and
start-up operating expenses, management believes that the branch network
expansion ultimately will lead to profitable growth in the retail operations of
the Company and will provide a source of funding at a lower cost than can be
obtained in the wholesale funding market. By expanding its branch network
through the establishment of supermarket branches, the Company will be able to
penetrate further its market area on an accelerated basis and with much lower
levels of capital investment and ongoing operating expense relative to opening
and operating stand-alone branch offices.
For fiscal years ended September 30, 1994, 1995 and 1996, the Company's net
income was approximately $5.8 million, $5.7 million and $550,000, respectively.
The decline in net income for fiscal year 1996 relative to fiscal years 1994 and
1995 was primarily attributable to (i) a one-time pre-tax assessment of $6.6
million to recapitalize the SAIF and (ii) an increase in the provision for loan
losses to $15.7 million, as compared to $135,000 and $261,000 for the 1994 and
1995 fiscal years, respectively. The significant increase in the loan loss
provision for fiscal year 1996 was caused by higher than anticipated charge-offs
during such year on the Bank's indirect automobile lending and additional
provisions to cover anticipated future losses related to the indirect lending
program. In connection with making such provision, the Bank discontinued its
indirect lending program as of September 30, 1996.
At September 30, 1996, non-performing assets equaled $16.1 million, an
increase of $13.4 million from non-performing assets of $2.7 million at
September 30, 1995. Repossessed assets increased $1.2 million to $1.6 million at
September 30, 1996 from $371,000 at September 30, 1995. At September 30, 1996,
the ratio of non-performing loans to total loans equaled 1.20% and
non-performing assets to total assets equaled 1.08%. In addition, as of such
date, the allowance for loan losses to non-performing loans equaled 92.40%.
Net income for the nine months ended June 30, 1997 was $6.9 million, as
compared to $7.9 million for the nine months ended June 30, 1996. The reduction
in net income for the first nine months of 1997, as compared to the first nine
months of 1996, was primarily due to an increase in other expenses associated
with the establishment of twelve new branch offices since June 30, 1996. The
provision for loan losses for the nine months ended June 30, 1997 was $2.2
million, as compared to $3.0 million for the nine months ended June 30, 1996. At
June 30, 1997, non-performing assets equaled $12.1 million, as compared to
non-performing assets of $16.1 million at September 30, 1996. Repossessed assets
decreased by $1.1 million to $522,000 at June 30, 1997 from $1.6 million at
September 30, 1996. At June 30, 1997, the ratio of non-performing loans to total
loans equaled 0.94% and non-performing assets to total assets equaled 0.73%. In
addition, as of such date, the allowance for loan losses to non-performing loans
equaled 61.31%.
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<PAGE> 18
The total allowance for loan losses related to indirect automobile loans
was $9.0 million and $4.0 million at September 30, 1996 and June 30, 1997,
respectively, compared to outstanding indirect loan balances of $148.2 million
and $101.7 million, respectively, at such dates. While management believes that
it has established an adequate allowance for loan losses, there can be no
assurance that the Bank will not have to increase its level of loan loss
allowance or otherwise implement corrective action or that regulators, in
reviewing the Bank's loan portfolio or operations, will not request that the
Bank increase its allowance for loan losses or otherwise implement corrective
action, thereby negatively affecting the Bank's financial condition and
earnings. See "Risk Factors -- Losses in Indirect Automobile Lending Portfolio."
The principal executive offices of the Company are located at 450 S.
Australian Avenue, West Palm Beach, Florida 33401 and its telephone number at
such address is (561) 655-8511.
The Company is a legal entity, separate and distinct from its subsidiaries.
The ability of holders of debt and equity securities of the Company to benefit
from the distribution of assets of any subsidiary upon the liquidation or
reorganization of such subsidiary is subordinate to prior claims of creditors of
the subsidiary (including depositors in the case of banking subsidiaries),
except to the extent that a claim of the Company as a creditor may be
recognized.
There are various statutory and regulatory limitations on the extent to
which present and future banking subsidiaries of the Company can finance or
otherwise transfer funds to the Company or its non-banking subsidiaries, whether
in the form of loans, extensions of credit, investments or asset purchases. In
addition, there are regulatory limitations on the payment of dividends directly
or indirectly to the Company from the Bank. At June 30, 1997, the Bank (without
regard to limitations in the Indenture and prior to the contribution of $25
million to the capital of the Bank) could declare additional dividends to the
Company without regulatory approval of approximately $22 million.
For additional information with respect to the Company, see "Available
Information," "Incorporation of Certain Documents by Reference," "Risk Factors,"
and "Selected Consolidated Financial Data."
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
Exchange Senior Debentures offered hereby. In consideration for issuing the
Exchange Senior Debentures as contemplated in this Prospectus, the Company will
receive in exchange Original Senior Debentures in like principal amount, the
terms of which are identical in all material respects to the Exchange Senior
Debentures, except for certain transfer restrictions and registration rights.
The Original Senior Debentures surrendered in exchange for the Exchange Senior
Debentures will be retired and canceled and cannot be reissued. The Company
received $34,125,000 in cash proceeds in conjunction with the issuance of the
Original Senior Debentures. Of these proceeds, $25,000,000 were contributed to
the Bank, $250,000 were used to satisfy related issuance costs, and the
remaining proceeds were used for general corporate purposes.
-17-
<PAGE> 19
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the respective periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED SEPTEMBER 30, ENDED JUNE 30,
----------------------------------------- --------------
1992 1993 1994 1995 1996 1996 1997
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits............ 6.42x 4.97x 2.34x 1.83x 1.08x 2.38x 2.24x
Including interest on deposits............ 1.33x 1.27x 1.31x 1.19x 1.02x 1.29x 1.22x
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
represent net income (loss) before extraordinary items and cumulative effect of
changes in accounting principles plus applicable income taxes and fixed charges.
Fixed charges, excluding interest on deposits, include gross interest expense
(other than on deposits) and the proportion deemed representative of the
interest factor of rent expense, net of income from subleases. Fixed charges,
including gross interest on deposits, include all interest expense and the
proportion deemed representative of the interest factor of rent expense, net of
income from subleases.
-18-
<PAGE> 20
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company at June 30, 1997 and is adjusted to give effect to the Exchange Offer as
if it had occurred on June 30, 1997, and assuming that all outstanding Original
Senior Debentures are exchanged for Exchange Senior Debentures. The issuance of
the Exchange Senior Debentures in the Exchange Offer will have no effect on the
capitalization of the Company. This table is based on, and is qualified in its
entirety by, the historical consolidated financial statements of the Company,
including the related notes thereto, which are included in documents
incorporated by reference herein, and should be read in conjunction therewith.
See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
JUNE 30, 1997
-----------------------
ACTUAL AS ADJUSTED
-------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-term debt......................................................... $ 75,950 $ 75,950
Series A 10.35% Senior Debentures Due 2002, net of issuance costs...... 33,875 --
Series B 10.35% Senior Debentures Due 2002, net of issuance costs...... -- 33,875
Stockholders' equity:
Preferred stock ($.01 par value) authorized 1,000,000 shares; none
outstanding.......................................................... -- --
Common stock ($.01 par value) authorized 10,000,000 shares; issued
[5,496,375] shares; outstanding [5,030,846] shares (net of treasury
stock)............................................................... 55 55
Additional paid-in capital............................................. 53,221 53,221
Retained earnings, substantially restricted............................ 69,698 69,698
Treasury stock, at cost, [465,529] shares.............................. (10,195) (10,195)
Common stock purchased by:
Employee stock ownership plan........................................ (1,162) (1,162)
Recognition and retention plans...................................... (147) (147)
Unrealized decrease in fair value on available-for-sale securities (net
of applicable income taxes).......................................... (1,975) (1,975)
-------- -----------
Total stockholders' equity............................................. 109,495 109,495
-------- -----------
Total capitalization................................................... $219,320 $ 219,320
======== =========
</TABLE>
-19-
<PAGE> 21
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data below should be read in connection
with the consolidated financial information included in the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1996, and its
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. See
"Available Information," "Incorporation of Certain Documents by Reference" and
"First Palm Beach Bancorp, Inc." Interim unaudited consolidated financial data
for the nine months ended June 30, 1997 and 1996 reflect, in the opinion of
management of the Company, all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of such data. Results for the
nine months ended June 30, 1997 are not necessarily indicative of results which
may be expected for any other interim period or for the year as a whole.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED SEPTEMBER 30, JUNE 30,
---------------------------------------------------------- -----------------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED SUMMARY OF OPERATION:
Interest income....................... $ 61,906 $ 50,580 $ 57,874 $ 80,964 $ 103,532 $ 76,597 $ 84,937
Interest expense...................... 37,764 28,783 30,049 48,900 61,300 45,106 51,841
-------- -------- ---------- ---------- ---------- ---------- ----------
Net interest income................... 24,142 21,797 27,825 32,064 42,232 31,491 33,096
-------- -------- ---------- ---------- ---------- ---------- ----------
Provision for loan losses............. 1,675 149 135 261 15,704 3,013 2,200
Net interest income after provision
for loan losses..................... 22,467 21,648 27,690 31,803 26,528 28,478 30,896
Other income.......................... 9,274 5,775 4,437 4,030 10,069 4,612 5,993
Other expenses........................ 19,150 19,609 22,826 26,609 29,002 19,905 25,351
SAIF recapitalization charge.......... -- -- -- -- 6,600 -- --
Income before income taxes and
cumulative effect of change in
accounting principle................ 12,591 7,814 9,301 9,224 995 13,185 11,538
Provision for income taxes............ 5,066 3,019 3,502 3,578 446 5,296 4,637
-------- -------- ---------- ---------- ---------- ---------- ----------
Cumulative effect of change in
accounting for income taxes......... -- 422 -- -- -- -- --
-------- -------- ---------- ---------- ---------- ---------- ----------
Net income............................ $ 7,525 $ 5,217 $ 5,799 $ 5,646 $ 549 $ 7,889 $ 6,901
======== ======== ========= ========= ========= ========= =========
PER COMMON SHARE DATA:
Cash dividends declared per common
share............................... -- -- -- $ 0.20 $ 0.40 $ 0.30 $ 0.45
Book value per common share at period
end (tangible)...................... -- $ 18.62 $ 19.03 20.38 20.14 21.37 21.23
CONSOLIDATED BALANCE SHEET DATA AT
PERIOD END:
Securities held-to-maturity,
available-for-sale and trading
securities.......................... $ 82,142 $ 96,768 $ 117,122 $ 80,941 $ 34,532 $ 45,344 $ 49,250
Mortgage-backed and related securities
held-to-maturity and
available-for-sale.................. 194,788 284,012 324,044 238,442 232,273 207,609 369,723
Loans, net............................ 444,965 429,104 576,731 825,024 1,007,881 1,103,033 1,119,559
Allowance for loan losses............. 2,334 1,886 1,956 2,157 11,855 3,397 6,755
Total assets.......................... 815,571 856,307 1,076,583 1,208,845 1,490,020 1,438,024 1,666,396
Deposits.............................. 723,881 698,458 718,282 878,670 1,136,722 1,081,595 1,227,277
Borrowings............................ 17,469 26,325 229,892 189,552 211,025 211,050 260,950
Stockholders' equity.................. 50,983 102,330 100,462 104,611 105,425 113,606 109,495
CONSOLIDATED AVERAGE BALANCE SHEET DATA:
Securities held-to-maturity,
available-for-sale and trading
securities.......................... $ 48,547 $ 65,989 $ 126,320 $ 107,011 $ 58,288 $ 64,276 $ 66,153
Mortgage-backed and related securities
held-to-maturity and
available-for-sale.................. 182,546 260,883 304,948 311,929 221,285 225,120 286,169
Loans, net............................ 495,698 427,621 487,978 688,595 1,020,419 989,952 1,053,274
Total assets.......................... 807,320 820,679 973,017 1,174,179 1,390,279 1,366,555 1,530,992
Deposits.............................. 685,997 689,459 648,600 829,921 995,991 974,047 1,140,403
Borrowings............................ 19,545 22,549 159,052 182,158 212,093 212,279 210,981
Stockholders' equity.................. 46,466 53,633 103,355 102,676 111,987 110,670 105,893
</TABLE>
-20-
<PAGE> 22
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED SEPTEMBER 30, JUNE 30,
---------------------------------------------------------- -----------------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED FINANCIAL RATIOS:
Return on average total assets(2)..... 0.93% 0.64% 0.60% 0.48% 0.04% 0.77% 0.60%
Return on average stockholders'
equity(2)........................... 16.19 9.73 5.61 5.50 0.49 9.52 8.71
Net interest margin(1)................ 3.17 2.78 2.97 2.83 3.18 3.22 3.03
Operating expenses/average
assets(2)........................... 2.37 2.39 2.35 2.27 2.56 1.95 2.21
Tangible capital ratio(3)............. 6.04 8.86 7.23 7.66 6.17 7.40 7.47
Leverage (core) capital ratio(3)...... 6.04 8.86 7.23 7.66 6.17 7.40 7.47
Risk-based capital ratio(3)........... 14.24 20.35 16.98 14.97 12.28 13.05 14.77
</TABLE>
- ---------------
(1) Calculation is based upon net interest before provision for loan losses
divided by average interest-earning assets.
(2) Ratios for fiscal year ended September 30, 1996 include a one-time special
assessment paid by all financial institutions insured by the SAIF. The
Bank's pretax assessment was $6.6 million.
(3) Represents the regulatory capital ratio of the Bank. Under current policy,
the capital adequacy requirements of the Office of Thrift Supervision are
applied only at the Bank level.
-21-
<PAGE> 23
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the Original Senior Debentures, the Company
entered into the Registration Agreement with the Initial Purchaser, pursuant to
which the Company agreed to file and to use its reasonable efforts to cause to
become effective with the Commission a registration statement with respect to
the exchange of the Original Senior Debentures for debentures with terms
identical in all material respects to the terms of the Original Senior
Debentures. A copy of the Registration Agreement has been filed as an Exhibit to
the Registration Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations of
the Company under the Registration Agreement. The form and terms of the Exchange
Senior Debentures are the same as the form and terms of the Original Senior
Debentures except that the Exchange Senior Debentures have been registered under
the Securities Act and will not provide for any increase in the interest
thereon, except under limited circumstances. See "Risk Factors -- Consequences
of a Failure to Exchange Original Senior Debentures," "Description of Exchange
Senior Debentures," and "Description of Original Senior Debentures."
The Exchange Offer is not being made to, nor will the Company accept
tenders for exchange from, holders of Original Senior Debentures in any
jurisdiction in which the Exchange Offer or the acceptance thereof would not be
in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the Exchange Offer means any person in whose name the Original Senior Debentures
are registered on the books of the Company or any other person who has obtained
a properly completed bond power from the registered holder, or any person whose
Original Senior Debentures are held of record by DTC who desires to deliver such
Original Senior Debentures by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Company will exchange as soon as
practicable after the date hereof, the Original Senior Debentures for a like
aggregate principal amount of Exchange Senior Debentures. The Exchange Senior
Debentures have been registered under the Securities Act.
TERMS OF THE EXCHANGE OFFER
The Company hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $35,000,000 aggregate principal amount of Exchange Senior
Debentures for a like aggregate principal amount of Original Senior Debentures
properly tendered on or prior to the Expiration Date and not properly withdrawn
in accordance with the procedures described below. The Company will issue,
promptly after the Expiration Date, an aggregate principal amount of up to
$35,000,000 of Exchange Senior Debentures in exchange for a like principal
amount of outstanding Original Senior Debentures tendered and accepted in
connection with the Exchange Offer. Holders may tender their Original Senior
Debentures in whole or in part in a principal amount of not less than $100,000
(100 Senior Debentures) or any integral multiple of $1,000 principal amount (one
Senior Debenture) in excess thereof.
The Exchange Offer is not conditioned upon any minimum principal amount of
Original Senior Debentures being tendered. As of the date of this Prospectus,
$35,000,000 aggregate principal amount of the Original Senior Debentures is
outstanding.
Holders of Original Senior Debentures do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Original Senior
Debentures which are not tendered for or are tendered but not accepted in
connection with the Exchange Offer will remain outstanding and be entitled to
the benefits of the Indenture, but will not be entitled to any further
registration rights under the Registration Agreement, except under limited
circumstances. See "Risk Factors -- Consequences of a Failure to Exchange
Original Senior Debentures" and "Description of Original Senior Debentures."
-22-
<PAGE> 24
If any tendered Original Senior Debentures are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Original Senior
Debentures will be returned, without expense, to the tendering holder thereof
promptly after the Expiration Date.
Holders who tender Original Senior Debentures in connection with the
Exchange Offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the Letter of Transmittal, transfer taxes with
respect to the exchange of Original Senior Debentures in connection with the
Exchange Offer. The Company will pay all charges and expenses, other than
certain applicable taxes described below, in connection with the Exchange Offer.
See "-- Fees and Expenses."
NEITHER THE COMPANY NOR THE BOARD OF DIRECTORS OF THE COMPANY MAKES ANY
RECOMMENDATION TO HOLDERS OF ORIGINAL SENIOR DEBENTURES AS TO WHETHER TO TENDER
OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR ORIGINAL SENIOR DEBENTURES
PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE
ANY SUCH RECOMMENDATION. HOLDERS OF ORIGINAL SENIOR DEBENTURES MUST MAKE THEIR
OWN DECISIONS WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER AND, IF SO, THE
AGGREGATE AMOUNT OF ORIGINAL SENIOR DEBENTURES TO TENDER BASED ON SUCH HOLDERS'
OWN FINANCIAL POSITIONS AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on
, 1997 unless the Exchange Offer is extended by the Company (in
which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended).
The Company expressly reserves the right in its sole and absolute
discretion, subject to applicable law, at any time and from time to time, (i) to
delay the acceptance of the Original Senior Debentures for exchange, (ii) to
terminate the Exchange Offer (whether or not any Original Senior Debentures have
theretofore been accepted for exchange) if the Company determines, in its sole
and absolute discretion, that any of the events or conditions referred to under
"-- Conditions to the Exchange Offer" have occurred or exist or have not been
satisfied, (iii) to extend the Expiration Date of the Exchange Offer and retain
all Original Senior Debentures tendered pursuant to the Exchange Offer, subject,
however, to the right of holders of Original Senior Debentures to withdraw their
tendered Original Senior Debentures as described under "-- Withdrawal Rights,"
and (iv) to waive any condition or otherwise amend the terms of the Exchange
Offer in any respect. If the Exchange Offer is amended in a manner determined by
the Company to constitute a material change, or if the Company waives a material
condition of the Exchange Offer, the Company will promptly disclose such
amendment by means of a prospectus supplement that will be distributed to the
holders of the Original Senior Debentures, and the Company will extend the
Exchange Offer to the extent required by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent and by
making a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which the Company may choose to make any public announcement and
subject to applicable law, the Company shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE SENIOR DEBENTURES
Upon the terms and subject to the conditions of the Exchange Offer, the
Company will exchange, and will issue to the Exchange Agent, Exchange Senior
Debentures for Original Senior Debentures validly tendered and not withdrawn
promptly after the Expiration Date.
-23-
<PAGE> 25
In all cases, delivery of Exchange Senior Debentures in exchange for
Original Senior Debentures tendered and accepted for exchange pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent of
(i) the book-entry confirmation described below under "-- Procedures for
Tendering Original Senior Debentures -- Book-Entry Transfer" or (ii)
certificates representing such Original Senior Debentures, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, and (iii) any other documents required by the
Letter of Transmittal.
Subject to the terms and conditions of the Exchange Offer, the Company will
be deemed to have accepted for exchange, and thereby exchanged, Original Senior
Debentures validly tendered and not withdrawn as, if and when the Company gives
oral or written notice to the Exchange Agent of the Company's acceptance of such
Original Senior Debentures for exchange pursuant to the Exchange Offer. The
Exchange Agent will act as agent for the Company for the purpose of receiving
tenders of book-entry confirmations or certificates representing Original Senior
Debentures, Letters of Transmittal and related documents, and as agent for
tendering holders for the purpose of receiving book-entry confirmations or
certificates representing Original Senior Debentures, Letters of Transmittal and
related documents and transmitting Exchange Senior Debentures to validly
tendering holders. Such exchange will be made promptly after the Expiration
Date. If for any reason whatsoever, acceptance for exchange or the exchange of
any Original Senior Debentures tendered pursuant to the Exchange Offer is
delayed (whether before or after the Company's acceptance for exchange of
Original Senior Debentures) or the Company extends the Exchange Offer or is
unable to accept for exchange or exchange Original Senior Debentures tendered
pursuant to the Exchange Offer, then, without prejudice to the Company's rights
set forth herein, the Exchange Agent may, nevertheless, on behalf of the Company
and subject to Rule 14e-1(c) under the Exchange Act, retain tendered Original
Senior Debentures and such Original Senior Debentures may not be withdrawn
except to the extent tendering holders are entitled to withdrawal rights as
described under "-- Withdrawal Rights."
Pursuant to the Letter of Transmittal, a holder of Original Senior
Debentures will warrant and agree that it has full power and authority to
tender, exchange, sell, assign and transfer Original Senior Debentures, that the
Company will acquire good, marketable and unencumbered title to the tendered
Original Senior Debentures, free and clear of all liens, restrictions, charges
and encumbrances, and the Original Senior Debentures tendered for exchange are
not subject to any adverse claims or proxies. Such holder also will warrant and
agree that it will, upon request, execute and deliver any additional documents
deemed by the Company or the Exchange Agent to be necessary or desirable to
complete the exchange, sale, assignment, and transfer of the Original Senior
Debentures tendered pursuant to the Exchange Offer. Tendering holders of
Original Senior Debentures that use ATOP will, by so doing, acknowledge that
they are bound by the terms of the Letter of Transmittal.
PROCEDURES FOR TENDERING ORIGINAL SENIOR DEBENTURES
Book-Entry Transfer. For purposes of the Exchange Offer, the Exchange
Agent will establish an account with respect to the Original Senior Debentures
at DTC within two business days after the date of this Prospectus. Any tendering
financial institution that is a participant in DTC's book-entry transfer
facility system must make a book-entry delivery of the Original Senior
Debentures by causing DTC to transfer such Original Senior Debentures into the
Exchange Agent's account at DTC in accordance with DTC's ATOP procedures for
transfers. Such holder of Original Senior Debentures using ATOP should transmit
its acceptance to DTC on or prior to the Expiration Date (or comply with the
guaranteed delivery procedures set forth below). DTC will verify such
acceptance, execute a book-entry transfer of the tendered Original Senior
Debentures into the Exchange Agent's account at DTC and then send to the
Exchange Agent confirmation of such book-entry transfer, including an agent's
message confirming that DTC has received an express acknowledgment from such
holder that such holder has received and agrees to be bound by this Letter of
Transmittal and that the Company may enforce this Letter of Transmittal against
such holder (a "book-entry confirmation").
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
-24-
<PAGE> 26
A beneficial owner of Original Senior Debentures that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial owner wishes to participate in the Exchange Offer.
Certificates. If the tender is not made through ATOP, certificates
representing Original Senior Debentures, as well as the Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by the Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
under "-- Exchange Agent" on or prior to the Expiration Date in order for such
tender to be effective (or the guaranteed delivery procedures set forth below
must be complied with).
If less than all of the Original Senior Debentures are tendered, a
tendering holder should fill in the amount of Original Senior Debentures being
tendered in the appropriate box on the Letter of Transmittal. The entire amount
of Original Senior Debentures delivered to the Exchange Agent will be deemed to
have been tendered unless otherwise indicated.
Signature Guarantees. Certificates for the Original Senior Debentures need
not be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (a) a certificate for the Original Senior Debentures is
registered in a name other than that of the person surrendering the certificate
or (b) such holder completes the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" in the Letter of Transmittal. In the case of (a)
or (b) above, such certificates for Original Senior Debentures must be duly
endorsed or accompanied by a properly executed bond power, with the endorsement
or signature on the bond power and on the Letter of Transmittal guaranteed by a
firm or other entity identified in Rule 17Ad-15 under the Exchange Act as an
"eligible guarantor institution," including (as such terms are defined therein):
(i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency; or
(v) a savings association that is a participant in a Securities Transfer
Association (an "Eligible Institution"), unless surrendered on behalf of such
Eligible Institution. See Instruction 1 to the Letter of Transmittal.
Delivery. The method of delivery of the book-entry confirmation or
certificates representing tendered Original Senior Debentures, the Letter of
Transmittal, and all other required documents is at the option and sole risk of
the tendering holder, and "delivery" will be deemed made only when actually
received by the Exchange Agent. If delivery is by mail, registered mail, return
receipt requested, properly insured, or an overnight delivery service is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
Notwithstanding any other provision hereof, the delivery of Exchange Senior
Debentures in exchange for Original Senior Debentures tendered and accepted for
exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of (i) a book-entry confirmation with
respect to such Original Senior Debentures or (ii) certificates representing
Original Senior Debentures and a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees and any other documents required by the Letter of Transmittal.
Accordingly, the delivery of Exchange Senior Debentures might not be made to all
tendering holders at the same time, and will depend upon when book-entry
confirmations with respect to Original Senior Debentures or certificates
representing Original Senior Debentures and other required documents are
received by the Exchange Agent.
Guaranteed Delivery. If a holder desires to tender Original Senior
Debentures pursuant to the Exchange Offer and the certificates for such Original
Senior Debentures are not immediately available or time will not permit all
required documents to reach the Exchange Agent on or prior to the Expiration
Date, or the procedure for book-entry transfer cannot be completed on a timely
basis, such Original Senior Debentures may nevertheless be tendered, provided
that all of the following guaranteed delivery procedures are complied with:
(1) such tenders are made by or through an Eligible Institution;
(2) a properly completed and duly executed notice to the Exchange
Agent guaranteeing delivery to the Exchange Agent of either certificates
representing the Original Senior Debentures or a book-entry
-25-
<PAGE> 27
confirmation in compliance with the requirements set forth herein (the
"Notice of Guaranteed Delivery"), substantially in the form accompanying
the Letter of Transmittal, is received by the Exchange Agent, as provided
below, on or prior to the Expiration Date;
(3) (a) a book-entry confirmation or (b) the certificates representing
all tendered Original Senior Debentures, in proper form for transfer,
together with a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees and any
other documents required by the Letter of Transmittal, are, in any case,
received by the Exchange Agent within three New York Stock Exchange trading
days after the date of execution of the Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
The Company's acceptance for exchange of Original Senior Debentures
tendered pursuant to any of the procedures described above will constitute a
binding agreement between the tendering holder and the Company upon the terms
and subject to the conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Original Senior Debentures will be determined by the Company, in
its sole discretion, whose determination shall be final and binding on all
parties. The Company reserves the absolute right, in its sole and absolute
discretion, to reject any and all tenders determined by it not to be in proper
form or the acceptance of which, or exchange for, may, in the opinion of counsel
to the Company, be unlawful. The Company also reserves the absolute right,
subject to applicable law, to waive any of the conditions of the Exchange Offer
as set forth under "-- Conditions to the Exchange Offer" or any condition or
irregularity in any tender of Original Senior Debentures of any particular
holder whether or not similar conditions or irregularities are waived in the
case of other holders.
The interpretation by the Company of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding. No tender of Original Senior Debentures will
be deemed to have been validly made until all irregularities with respect to
such tender have been cured or waived. Neither the Company, any affiliates or
assigns of the Company, the Exchange Agent nor any other person shall be under
any duty to give any notification of any irregularities in tenders or incur any
liability for failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney,
or any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the Company,
proper evidence satisfactory to the Company, in its sole discretion, of such
person's authority to so act must be submitted.
A beneficial owner of Original Senior Debentures that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the Exchange Offer.
RESALES OF EXCHANGE SENIOR DEBENTURES
The Company is making the Exchange Offer for the Exchange Senior Debentures
in reliance on the position of the staff of the Division of Corporation Finance
of the Commission as set forth in certain interpretive letters addressed to
third parties in other transactions. However, the Company has not sought its own
interpretive letter and there can be no assurance that the staff of the Division
of Corporation Finance of the Commission would make a similar determination with
respect to the Exchange Offer as it has in such interpretive letters to third
parties. Based on these interpretations by the staff of the Division of
Corporation Finance of the Commission, and subject to the two immediately
following sentences, the Company believes that Exchange Senior Debentures issued
pursuant to this Exchange Offer in exchange for Original Senior Debentures may
be offered for resale, resold and otherwise transferred by a holder thereof
(other than a holder who is a broker-dealer) without further compliance with the
registration and prospectus delivery requirements of the Securities Act,
provided that such Exchange Senior Debentures are acquired in the ordinary
course of
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such holder's business and that such holder is not participating, and has no
arrangement or understanding with any person to participate, in a distribution
(within the meaning of the Securities Act) of such Exchange Senior Debentures.
However, any holder of Original Senior Debentures who is an "affiliate" of the
Company or who intends to participate in the Exchange Offer for the purpose of
distributing Exchange Senior Debentures, or any broker-dealer who purchased
Original Senior Debentures from the Company to resell pursuant to Rule 144A or
any other available exemption under the Securities Act, (a) will not be able to
rely on the interpretations of the staff of the Division of Corporation Finance
of the Commission set forth in the above-mentioned interpretive letters, (b)
will not be permitted or entitled to tender such Original Senior Debentures in
the Exchange Offer and (c) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or other
transfer of such Original Senior Debentures unless such sale is made pursuant to
an exemption from such requirements. In addition, as described below, if any
broker-dealer holds Original Senior Debentures acquired for its own account as a
result of market-making or other trading activities and exchanges such Original
Senior Debentures for Exchange Senior Debentures, then such broker-dealer must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of such Exchange Senior Debentures.
Each holder of Original Senior Debentures who wishes to exchange Original
Senior Debentures for Exchange Senior Debentures in the Exchange Offer will be
required to represent that (i) it is not an "affiliate" of the Company, (ii) any
Exchange Senior Debentures to be received by it are being acquired in the
ordinary course of its business, (iii) it has no arrangement or understanding
with any person to participate in a distribution (within the meaning of the
Securities Act) of such Exchange Senior Debentures, and (iv) if such holder is
not a broker-dealer, such holder is not engaged in, and does not intend to
engage in, a distribution (within the meaning of the Securities Act) of such
Exchange Senior Debentures. In addition, the Company may require such holder, as
a condition to such holder's eligibility to participate in the Exchange Offer,
to furnish to the Company (or an agent thereof) in writing information as to the
number of "beneficial owners" (within the meaning of Rule 13d-3 under the
Exchange Act) on behalf of whom such holder holds the Senior Debentures to be
exchanged in the Exchange Offer. Each broker-dealer that receives Exchange
Senior Debentures for its own account pursuant to the Exchange Offer must
acknowledge that it acquired the Original Senior Debentures for its own account
as the result of market-making activities or other trading activities and must
agree that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Senior Debentures.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. Based on the position
taken by the staff of the Division of Corporation Finance of the Commission in
the interpretive letters referred to above, the Company believes that
Participating Broker-Dealers who acquired Original Senior Debentures for their
own accounts as a result of market-making activities or other trading activities
may fulfill their prospectus delivery requirements with respect to the Exchange
Senior Debentures received upon exchange of such Original Senior Debentures
(other than Original Senior Debentures which represent an unsold allotment from
the initial sale of the Original Senior Debentures) with a prospectus meeting
the requirements of the Securities Act, which may be the prospectus prepared for
an exchange offer so long as it contains a description of the plan of
distribution with respect to the resale of such Exchange Senior Debentures.
Accordingly, this Prospectus, as it may be amended or supplemented from time to
time, may be used by a Participating Broker-Dealer during the period referred to
below in connection with resales of Exchange Senior Debentures received in
exchange for Original Senior Debentures where such Original Senior Debentures
were acquired by such Participating Broker-Dealer for its own account as a
result of market-making or other trading activities. Subject to certain
provisions set forth in the Registration Agreement, the Company has agreed that
this Prospectus, as it may be amended or supplemented from time to time, may be
used by a Participating Broker-Dealer in connection with resales of such
Exchange Senior Debentures for a period ending 90 days after the Expiration Date
(subject to extension under certain limited circumstances described below) or,
if earlier, when all such Exchange Senior Debentures have been disposed of by
such Participating Broker-Dealer. See "Plan of Distribution." However, a
Participating Broker-Dealer who intends to use this Prospectus in connection
with the resale of Exchange Senior Debentures received in exchange for Original
Senior Debentures pursuant to the Exchange Offer must notify the Company, or
cause the Company to be notified, on or prior to the
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<PAGE> 29
Expiration Date, that it is a Participating Broker-Dealer. Such notice may be
given in the space provided for that purpose in the Letter of Transmittal or may
be delivered to the Exchange Agent at one of the addresses set forth herein
under "-- Exchange Agent." Any Participating Broker-Dealer who is an "affiliate"
of the Company may not rely on such interpretive letters and must comply with
the registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders Original
Senior Debentures pursuant to the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal, that upon receipt of notice from the
Company of the occurrence of any event or the discovery of (i) any fact which
makes any statement contained or incorporated by reference in this Prospectus
untrue in any material respect or (ii) any fact which causes this Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference herein, in light of the circumstances
under which they were made, not misleading, or (iii) of the occurrence of
certain other events specified in the Registration Agreement, such Participating
Broker-Dealer will suspend the sale of Exchange Senior Debentures pursuant to
this Prospectus until the Company has amended or supplemented this Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such Participating Broker-Dealer, or the Company has
given notice that the sale of the Exchange Senior Debentures may be resumed, as
the case may be. If the Company gives such notice to suspend the sale of the
Exchange Senior Debentures, it shall extend the 90-day period referred to above
during which Participating Broker-Dealers are entitled to use this Prospectus in
connection with the resale of Exchange Senior Debentures by the number of days
during the period from and including the date of the giving of such notice to
and including the date when Participating Broker-Dealers shall have received
copies of the amended or supplemented Prospectus necessary to permit resales of
the Exchange Senior Debentures or to and including the date on which the Company
has given notice that the sale of Exchange Senior Debentures may be resumed, as
the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Original Senior Debentures
may be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at one of its addresses set forth under "-- Exchange Agent" on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Original Senior Debentures to be withdrawn,
the aggregate principal amount of Original Senior Debentures to be withdrawn,
and, if certificates for such Original Senior Debentures have been tendered, the
name of the registered holder of the Original Senior Debentures as set forth on
such certificates if different from that of the person who tendered such
Original Senior Debentures. If certificates representing Original Senior
Debentures have been delivered or otherwise identified to the Exchange Agent,
then prior to the physical release of such certificates, the tendering holder
must submit the serial numbers shown on the particular certificates to be
withdrawn and the signature on the notice of withdrawal must be guaranteed by an
Eligible Institution, except in the case of Original Senior Debentures tendered
for the account of an Eligible Institution. If Original Senior Debentures have
been tendered pursuant to the procedures for book-entry transfer set forth in
"-- Procedures for Tendering Original Senior Debentures -- Book-Entry Transfer,"
the notice of withdrawal must specify the name and number of the account at DTC
to be credited with the withdrawal of Original Senior Debentures. Withdrawals of
tenders of Original Senior Debentures may not be rescinded. Original Senior
Debentures properly withdrawn will not be deemed validly tendered for purposes
of the Exchange Offer, but may be retendered at any subsequent time on or prior
to the Expiration Date by following any of the procedures described above under
"-- Procedures for Tendering Original Senior Debentures."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
Neither the Company, any affiliates or assigns of the Company, the Exchange
Agent nor any other person shall be under any duty to give any notification of
any irregularities in any notice of withdrawal or incur
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<PAGE> 30
any liability for failure to give any such notification. Any Original Senior
Debentures which have been tendered but which are withdrawn will be returned to
the holder thereof promptly after withdrawal.
INTEREST PAYMENTS ON EXCHANGE SENIOR DEBENTURES
Holders of Original Senior Debentures whose Original Senior Debentures are
accepted for exchange will not receive interest on such Original Senior
Debentures and will be deemed to have waived the right to receive any interest
on such Original Senior Debentures accumulated from and after June 30, 1997.
Accordingly, holders of Exchange Senior Debentures (as of the record date) for
the payment of interest on December 31, 1997 will be entitled to receive
interest accumulated from and after June 30, 1997.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Company will not be required to accept for
exchange, or to exchange, any Original Senior Debentures for any Exchange Senior
Debentures, and, as described below, may terminate the Exchange Offer (whether
or not any Original Senior Debentures have theretofore been accepted for
exchange) or may waive any conditions to or amend the Exchange Offer, if any of
the following conditions have occurred or exists or have not been satisfied:
(a) there shall occur a change in the current interpretation by the
staff of the Commission which permits the Exchange Senior Debentures issued
pursuant to the Exchange Offer in exchange for Original Senior Debentures
to be offered for resale, resold and otherwise transferred by holders
thereof (other than broker-dealers and any such holder which is an
"affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange
Senior Debentures are acquired in the ordinary course of such holders'
business and such holders have no arrangement or understanding with any
person to participate in the distribution of such Exchange Senior
Debentures; or
(b) any law, statute, rule or regulation shall have been adopted or
enacted which, in the judgment of the Company, would reasonably be expected
to impair its ability to proceed with the Exchange Offer; or
(c) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement, or proceedings shall have been initiated or, to the knowledge of
the Company, threatened for that purpose, or any governmental approval has
not been obtained, which approval the Company shall, in its sole
discretion, deem necessary for the consummation of the Exchange Offer as
contemplated hereby.
If the Company determines in its sole and absolute discretion that any of
the foregoing events or conditions has occurred or exists or has not been
satisfied, it may, subject to applicable law, terminate the Exchange Offer
(whether or not any Original Senior Debentures have theretofore been accepted
for exchange) or may waive any such condition or otherwise amend the terms of
the Exchange Offer in any respect. If such waiver or amendment constitutes a
material change to the Exchange Offer, the Company will promptly disclose such
waiver or amendment by means of a prospectus supplement that will be distributed
to the registered holders of the Original Senior Debentures and will extend the
Exchange Offer to the extent required by Rule 14e-1 under the Exchange Act.
EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the Exchange
Offer. Delivery of the Letters of Transmittal and any other required documents,
questions, requests for assistance, and requests for
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<PAGE> 31
additional copies of this Prospectus or of the Letter of Transmittal should be
directed to the Exchange Agent as follows:
<TABLE>
<S> <C>
By Mail: The Bank of New York
101 Barclay Street, 7E
New York, New York 10286
Attention: Reorganization Section
-----------------------------------
By Overnight Mail The Bank of New York
or Courier: 101 Barclay Street
Corporate Company Services Window
Ground Level
New York, New York 10286
Attention: Reorganization Section
-----------------------------------
By Hand: The Bank of New York
101 Barclay Street
Corporate Company Services Window
Ground Level
New York, New York 10286
Attention: Reorganization Section
-----------------------------------
Facsimile Transmission Number: (212) 571-3080
Confirm by Telephone: (212) 815-6337
Information: (212) 815-6337
</TABLE>
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
The Company has agreed to pay the Exchange Agent reasonable and customary
fees for its services and will reimburse it for its reasonable out-of-pocket
expenses in connection therewith. The Company will also pay brokerage houses and
other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus and related documents
to the beneficial owners of Original Senior Debentures, and in handling or
tendering for their customers.
Holders who tender their Original Senior Debentures for exchange will not
be obligated to pay any transfer taxes in connection therewith. If, however,
Exchange Senior Debentures are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the Original Senior
Debentures tendered, or if a transfer tax is imposed for any reason other than
the exchange of Original Senior Debentures in connection with the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the
registered holder or any other persons) will be payable by the tendering holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
The Company will not make any payment to brokers, dealers or other nominees
soliciting acceptances of the Exchange Offer.
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<PAGE> 32
DESCRIPTION OF EXCHANGE SENIOR DEBENTURES
The terms of the Exchange Senior Debentures are identical in all material
respects to the Original Senior Debentures, except that (i) the Original Senior
Debentures have not been registered under the Securities Act, are subject to
certain restrictions on transfer and are entitled to certain rights under the
applicable Registration Agreement (which rights will terminate upon consummation
of the Exchange Offer, except under limited circumstances), and (ii) the
Exchange Senior Debentures will not provide for any increase in the interest
thereon, except under limited circumstances. Specifically, the Registration
Agreement provides that interest will accrue upon the principal amount of the
Original Senior Debentures at a rate of 0.25% in the event that: (i) neither a
registration statement ("Exchange Offer Registration Statement") nor a shelf
registration statement ("Shelf Registration Statement") with respect to the
Senior Debentures is filed with the Commission on or prior to November 28, 1997;
(ii) neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement is declared effective by the Commission on or prior to
December 28, 1997; (iii) the Company has not consummated the Exchange Offer
prior to January 27, 1998; or (iv) a Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to be effective
at any time prior to the expiration of the period referred to in Rule 144(k) of
the Securities Act. The Registration Agreement provides that additional interest
will accrue upon the principal amount of the Exchange Senior Debentures at a
rate of 0.25% after the consummation of the Exchange Offer only if a Shelf
Registration Statement is required to be filed because of changes in the law or
Commission policy and: (i) the Shelf Registration Statement is not filed within
45 days of an event that triggers the obligation to file the Shelf Registration
Statement; (ii) the Shelf Registration Statement is not declared effective by
the Commission on or prior to the 30th day after the date such Shelf
Registration Statement was required to be filed; or (iii) a Shelf Registration
Statement has been declared effective and such Shelf Registration Statement
ceases to be effective at any time prior to the expiration of the period
referred to in Rule 144(k) of the Securities Act. Holders of Original Senior
Debentures should review the information set forth under "Risk Factors --
Consequences of a Failure to Exchange Original Senior Debentures" and
"Description of Original Senior Debentures."
The Senior Debentures are to be issued under an Indenture, as supplemented
from time to time, between the Company and The Bank of New York, as Trustee.
Upon consummation of the Exchange Offer, the Indenture will be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). This
summary of certain terms and provisions of the Exchange Senior Debentures and
the Indenture does not purport to be complete, and where reference is made to
particular provisions of the Indenture, such provisions, including the
definitions of certain terms, some of which are not otherwise defined herein,
are qualified in their entirety by reference to all of the provisions of the
Indenture and those terms made a part of the Indenture by the Trust Indenture
Act.
GENERAL
The Exchange Senior Debentures will bear interest from June 30, 1997 at the
annual rate of 10.35% of the principal amount thereof, payable semi-annually in
arrears on June 30 and December 31 of each year, commencing December 31, 1997,
to the person in whose name each Exchange Senior Debenture is registered at the
close of business on June 15 or December 15 next preceding such Interest Payment
Date.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Exchange Senior Debentures is not a Business Day,
then payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that if such next succeeding Business Day
falls in the next succeeding calendar year, then such payment shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
The Exchange Senior Debentures will be issued in denominations of $100,000
and integral multiples of $1,000 above $100,000. The Exchange Senior Debentures
will mature on June 30, 2002 (the "Stated Maturity Date").
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<PAGE> 33
The Exchange Senior Debentures will not be redeemable by the Company, in
whole or in part, prior to the Stated Maturity Date.
The Exchange Senior Debentures will represent the only borrowings of the
Company outstanding at the parent level at the completion of the offering. The
Indenture permits the Company or its Subsidiaries to incur additional
indebtedness at the parent or subsidiary level in the event the indebtedness
does not exceed certain levels of Consolidated Net Worth. See "-- Covenants of
the Company." Because the Company is a holding company, the right of the Company
to participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability of
holders of the Exchange Senior Debentures to benefit indirectly from such
distribution) is subject to the prior claims of creditors of that subsidiary
(including depositors in the case of the Bank), except to the extent that the
Company may itself be recognized as a creditor of that subsidiary. At June 30,
1997, the subsidiaries of the Company had total liabilities (excluding
liabilities owed to the Company) of approximately $1.7 billion, including
deposits. Accordingly, the Exchange Senior Debentures will be effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, and holders of Exchange Senior Debentures should look only to the
assets of the Company for payments on the Exchange Senior Debentures.
In addition, as the Company is a non-operating holding company almost all
of the operating assets of the Company are owned by the Company's subsidiaries.
The Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations and corporate expenses. The Bank is subject to certain restrictions
imposed by federal law on any extensions of credit to, and certain other
transactions with, the Company and certain other affiliates, and on investments
in stock or other securities thereof. Such restrictions prevent the Company and
such other affiliates from borrowing from the Bank unless the loans are secured
by various types of collateral. Further, such secured loans, other transactions
and investments by the Bank are generally limited in amount as to the Company
and as to each of such other affiliates to 10% of such Bank's capital and
surplus and as to the Company and all of such other affiliates to an aggregate
of 20% of such Bank's capital and surplus. In addition, payment of dividends to
the Company by the subsidiary banks is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires approval by banking regulatory authorities. At June 30,
1997, the Bank (without regard to limitations set forth in the Indenture and
prior to the contribution of $25 million to the capital of the Bank) could have
declared additional dividends to the Company without prior regulatory approval
of approximately $22 million. Federal and state regulatory agencies also have
the authority to limit further the Bank's payment of dividends based on other
factors, such as the maintenance of adequate capital for the Bank which could
reduce the amount of dividends otherwise payable.
EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Exchange Senior Debentures constitutes an Event of
Default (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) failure for 30 days to pay any interest on the Exchange Senior
Debentures, when due; or
(ii) failure to pay any principal or premium, if any, on the Exchange
Senior Debentures when due whether at maturity, upon redemption, by
declaration of acceleration of maturity or otherwise; or
(iii) failure to observe or perform, in any material respect, certain
other covenants contained in the Indenture for 90 days after written notice
to the Company from the Trustee or the holders of at least 25% in aggregate
outstanding principal amount of Exchange Senior Debentures; or
(iv) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Principal Subsidiary
Bank (as defined below) having an aggregate principal amount outstanding in
excess of $2,000,000, or under any mortgage, indenture or instrument
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<PAGE> 34
(including the Indenture) under which there may be issued or by which there
may be secured or evidenced any indebtedness for money borrowed by the
Company or any Principal Subsidiary Bank having an aggregate principal
amount outstanding in excess of $2,000,000, which default (a) shall
constitute a failure to pay any portion of the principal of such
indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or (b) shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without, in the
case of clause (a), such indebtedness having been discharged or without, in
the case of clause (b), such indebtedness having been discharged or such
acceleration having been rescinded or annulled, in each such case within a
period of 30 days after there shall have been given written notice to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Exchange Senior
Debentures specifying such default and stating that such notice is a
"Notice of Default" under the Indenture, unless in either case (a) or (b)
such default is contested in good faith by appropriate proceedings; or
(v) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of the
Exchange Senior Debentures have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee. If an
Event of Default (other than an Event of Default described in clause (v) above)
occurs, the Trustee or the holders of not less than 25% in aggregate outstanding
principal amount of the Exchange Senior Debentures may declare the principal due
and payable immediately upon an Event of Default. The holders of a majority in
aggregate outstanding principal amount of the Exchange Senior Debentures may
annul such declaration and waive the default if the default (other than the
non-payment of the principal of the Exchange Senior Debentures which has become
due solely by such acceleration) has been cured and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee. If an Event of Default
described in clause (v) above occurs, the principal amount of the Exchange
Senior Debentures shall automatically become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any holder.
The holders of a majority in aggregate outstanding principal amount of the
Exchange Senior Debentures affected thereby may, on behalf of the holders of all
the Exchange Senior Debentures, waive any past default, except a default in the
payment of principal (or premium, if any) on or interest (unless such default
has been cured and a sum sufficient to pay all matured installments of interest
(and premium, if any) and principal due otherwise than by acceleration has been
deposited with the Trustee) or a default in respect of a covenant or provision
which under the Indenture cannot be modified or amended without the consent of
the holder of each outstanding Exchange Senior Debenture.
COVENANTS OF THE COMPANY
In addition to various other covenants of the Company, the Indenture
provides for the following provisions relating to the Company's business:
Limitation Upon Disposition of the Voting Stock of a Principal Subsidiary
Bank. The Indenture contains a covenant by the Company that it will not sell,
assign, transfer, grant a security interest in or otherwise dispose of any
shares of, securities convertible into or options, warrants or rights to
subscribe for or purchase shares of Voting Stock (as defined below) (other than
directors' qualifying shares) of any Principal Subsidiary Bank and that it will
not permit any Principal Subsidiary Bank to issue (except to the Company) shares
of, securities convertible into, or options, warrants or rights to subscribe for
or purchase, shares of Voting Stock of any Principal Subsidiary Bank, except for
sales, assignments, transfers, grants of security interests or other
dispositions which: (i) are for fair market value (as determined by the Board of
Directors of the Company) and, after giving effect to such dispositions and to
any potential dilution, the Company will own not less than 80% of the shares of
Voting Stock of such Principal Subsidiary Bank then issued and outstanding free
and clear of any security interest; (ii) are made in compliance with an order of
a court or regulatory authority of competent jurisdiction, a condition imposed
by any such court or authority permitting the acquisition by the Company,
directly or indirectly, of any other bank or entity the activities of which are
legally
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<PAGE> 35
permissible for a bank holding company or a subsidiary thereof to engage in, or
an undertaking made to such authority in connection with such an acquisition;
(iii) are made where such Principal Subsidiary Bank, having obtained any
necessary regulatory approvals, unconditionally guarantees payment when due of
the principal of and interest on the Exchange Senior Debentures; or (iv) are
made to the Company or any wholly-owned Subsidiary if such wholly-owned
Subsidiary agrees to be bound by the covenant as if it were the Company and the
Company agrees to maintain such wholly-owned Subsidiary as a wholly-owned
Subsidiary. Notwithstanding the foregoing, any Principal Subsidiary Bank may be
merged into or consolidated with another banking institution organized under the
laws of the United States, any State thereof or the District of Columbia, if
after giving effect to such merger or consolidation, the Company or any
wholly-owned Subsidiary owns at least 80% of the Voting Stock of such other
banking institution then issued and outstanding free and clear of any security
interest and if, immediately after giving effect thereto and treating any such
resulting banking institution thereafter as such Principal Subsidiary Bank and a
Subsidiary, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing. A "Principal Subsidiary Bank" is defined in the Indenture to mean
any Subsidiary which is a bank or a savings association and has total assets
equal to 30% or more of the consolidated assets of the Company determined as of
the date of the most recent audited financial statements of such entities. At
present, the only Principal Subsidiary Bank is the Bank.
Limitation on Funded Indebtedness and Indebtedness. The Indenture further
provides that the Company will not, and will not cause or permit any Subsidiary
to, create, assume, guarantee, incur or in any manner become, directly or
indirectly, liable in respect of any (i) Funded Indebtedness (as defined below)
unless, after giving effect thereto, Funded Indebtedness shall not exceed 50% of
Consolidated Net Worth and (ii) Indebtedness (as defined below) unless, after
giving effect thereto, Indebtedness shall not exceed 55% of Consolidated Net
Worth.
In addition, any Indebtedness incurred by any Subsidiary subsequent to the
issuance of the Senior Debentures shall not include any covenant which would
restrict the payment of dividends to the Company.
Consolidated Tangible Equity Capital. The Indenture further provides that
the Company will not at any time permit Consolidated Tangible Equity Capital (as
defined below) to be less than $90,000,000.
Capital Adequacy. The Company shall not allow the Bank to be classified as
other than "well capitalized" as defined by 12 C.F.R. Section 565.4 (or its
equivalent as such regulation may be amended from time to time).
Restrictions as to Dividends and Certain Other Payments. The Indenture
further provides that the Company will not, and will not permit any Subsidiary
to, declare or pay any dividend or make any other distribution on its capital
stock (other than on account of capital stock of a Subsidiary owned legally and
beneficially by the Company or a Subsidiary) or to its prospective stockholders
(other than dividends or distributions payable on its capital stock) or
purchase, redeem or otherwise acquire for value (except pursuant to a bona fide
pledge or employee benefit plan) any of its capital stock (other than on account
of capital stock of a Subsidiary owned legally and beneficially by the Company
or a Subsidiary) (each, a "Restricted Payment") unless: (i) immediately before
and after giving effect to such Restricted Payment, the aggregate amount of all
Restricted Payments declared or made after March 31, 1997 would not exceed the
sum of (a) $10,000,000 plus (b) 75% (or 100% in the case of a deficit) of
Consolidated Net Income (as defined below) for the period commencing March 31,
1997 and ending on and including the date such Restricted Payment is declared or
made (plus 100% of the proceeds of issuances of equity securities after March
31, 1997); (ii) at the time of and immediately before such declaration is made
and after giving effect to, such Restricted Payment, no Default or Event of
Default exists or would exist as a result of such Restricted Payment; and (iii)
no Default or Event of Default shall have occurred within 365 days of the
declaration of such Restricted Payment.
With respect to the description of the terms of the Indenture, as set forth
in this Prospectus, the following terms shall have the following meanings:
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<PAGE> 36
"Capitalized Lease" shall mean any rental obligation which, under generally
accepted accounting principles, is or will be required to be capitalized on the
books of the Company or any Subsidiary, taken at the amount thereof accounted
for as indebtedness (net of interest expense) in accordance with such
principles.
"Consolidated Net Worth" shall mean Stockholders' Equity (as defined below)
plus the Allowance for Loan Losses (as defined below) plus Deferred Loan Fees
(as defined below).
"Consolidated Tangible Equity Capital" shall mean Consolidated Net Worth
minus Goodwill (as defined below).
"Funded Indebtedness" shall mean all Indebtedness that matures more than
one year from the date of creation thereof, or that is extendible or renewable
at the option of any party thereto to a date more than one year from the date of
creation thereof (whether or not renewed or extended).
"Indebtedness" shall mean all indebtedness, liabilities and other
obligations direct or contingent (other than deferred income taxes and other
credits, outside minority interests and items of Stockholders' Equity (as
defined below) which would, in accordance with generally accepted accounting
principles, be classified upon the consolidated balance sheet of the Company as
liabilities, but in any event including without limitation: (i) all guarantees,
other than (a) guarantees on secured indebtedness and (b) guarantees of
obligations of Subsidiaries under employment and change in control agreements;
(ii) all indebtedness, liabilities and other obligations arising under any
conditional sale or other title retention agreement, whether or not the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property; provided, however,
that the terms "Funded Indebtedness" and "Indebtedness" shall not include any
obligation of the Company or of any Subsidiary incurred in the ordinary course
of its business, with respect to: (a) any deposits with it or funds collected by
it; (b) any banker's acceptance or letter of credit issued by it; (c) any check,
note, certificate of deposit, money order, traveler's check, draft or bill of
exchange issued, accepted or endorsed by it; (d) any discount with, borrowing
from, or other obligation to any Federal Reserve Bank, the Federal Deposit
Insurance Corporation or any Federal Home Loan Bank (or successor organization)
which discount or borrowing is in the ordinary course of its banking business
and not incurred in connection with any unusual or extraordinary "rescue loan"
or substantially similar investment by such Federal Reserve Bank, the Federal
Deposit Insurance Corporation or the Federal Home Loan Bank (or successor
organization); (e) any agreement, made by it in the ordinary course of its
banking business, to purchase or repurchase securities, loans or federal funds,
or to participate in any such purchase or repurchase; (f) any transaction made
by it in the ordinary course of its banking business in the nature of any
extension of credit, whether in the form of a commitment, guarantee or
otherwise, undertaken by it for the account of a third party with the
application by it of the same banking considerations and legal lending limits
that would be applicable if the transaction were a loan to such party; (g) any
transaction in which it acts solely in a fiduciary or agency capacity; (h) other
obligations incurred by it in the ordinary course of its banking, mortgage
banking or trust business to its customers solely in their capacities as such;
(i) any other liability or obligation of such Subsidiary incurred in the
ordinary course of its banking business not involving any obligation for
borrowed money; (j) Capitalized Leases; (k) any borrowings under mortgage
warehousing lines of credit; (l) any borrowings under the Company's revolving
line of credit with a maturity date of less than one year up to an aggregate
amount at any time outstanding equal to 30% of Consolidated Net Worth; and (m)
drafts outstanding or official bank checks outstanding used to fund mortgage
loan volume; provided, however, that notwithstanding the foregoing, Indebtedness
shall not be deemed to include the guaranty by the Company of any secured
Indebtedness of any Subsidiary which is permitted to be incurred under the
Indenture.
"Stockholders' Equity," "Allowance for Loan Losses," "Deferred Loan Fees,"
"Consolidated Assets," "Consolidated Net Income," "Consolidated Net Loss," and
"Goodwill" shall be defined according to generally accepted accounting
principles applicable to the Company and in effect on the Issue Date.
"Subsidiary" shall mean with respect to any Person, (i) any corporation at
least a majority of the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its
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<PAGE> 37
Subsidiaries, and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner.
"Voting Stock" shall mean the stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have
contingent voting rights).
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company shall not consolidate with or merge
into any other Person or convey, transfer or lease its properties and assets as
an entirety or substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to the
Company, unless: (i) the Company is the surviving Person in the transaction in
case the Company consolidates with or merges into another Person or conveys or
transfers its properties and assets substantially as an entirety to any Person,
the successor Person is organized under the laws of the United States or any
State or the District of Columbia, and such successor Person expressly assumes
the Company's obligations on the Exchange Senior Debentures; (ii) immediately
after giving effect thereto, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing; and (iii) certain other conditions as prescribed in
the Indenture are met.
MODIFICATION OF INDENTURE
From time to time the Company and the Trustee may, without the consent of
the holders of Exchange Senior Debentures, amend, waive or supplement the
Indenture for specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies (provided that any such action does not
materially adversely affect the interest of the holders of Exchange Senior
Debentures) and qualifying, or maintaining the qualification of, the Indenture
under the Trust Indenture Act. The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of a 66 2/3% in
principal amount of Exchange Senior Debentures, to modify the Indenture in a
manner affecting the rights of the holders of Exchange Senior Debentures;
provided, that no such modification may, without the consent of the holders of
each outstanding Senior Debenture so affected, (i) change the Stated Maturity,
or reduce the principal amount of the Exchange Senior Debentures or reduce the
rate or extend the time of payment of interest thereon or (ii) reduce the
percentage of principal amount of Exchange Senior Debentures, the holders of
which are required to consent to any such modification of the Indenture.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Exchange Senior
Debentures not previously delivered to the Trustee for cancellation (i) have
become due and payable or (ii) will become due and payable at maturity within
one year, and the Company deposits or causes to be deposited with the Trustee
funds, in trust, for the purpose and in an amount sufficient to pay and
discharge the entire indebtedness on the Exchange Senior Debentures not
previously delivered to the Trustee for cancellation, for the principal (and
premium, if any) and interest to the date of the deposit or to the Stated
Maturity Date, as the case may be, then the Indenture will cease to be of
further effect (except for certain obligations of the Company, including as to
the Company's obligations to pay all other sums due pursuant to the Indenture
and to provide the officers' certificates and opinions of counsel described
therein), and the Company will be deemed to have satisfied and discharged the
Indenture.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Exchange Senior Debentures will be in blocks having an aggregate
principal amount of not less than $100,000 and may be transferred or exchanged
only in such blocks in the manner and at the offices described below.
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<PAGE> 38
The Exchange Senior Debentures initially will be represented by one or more
Exchange Senior Debentures in registered, global form (collectively, the "Global
Senior Debentures"). The Global Senior Debentures will be deposited upon
issuance with, or on behalf of, DTC, in New York, New York, and registered in
the name of DTC or its nominee, in each case for credit to an account of a
direct or indirect participant in DTC as described below.
Except as set forth below, the Global Senior Debentures may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of
DTC or its nominee. Beneficial interests in the Global Senior Debentures may not
be exchanged for Senior Debentures in certificated form except in the limited
circumstances described below. See "-- Exchange of Book-Entry Senior Debentures
for Certificated Senior Debentures."
Exchange Senior Debentures will be subject to certain restrictions on
transfer and will bear a restrictive legend as described under "Notice to
Investors." In addition, transfer of beneficial interests in the Global Senior
Debentures will be subject to the applicable rules and procedures of DTC and its
direct or indirect participants, which may change from time to time.
DEPOSITARY PROCEDURES
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between Participants through electronic
book-entry changes in accounts of its Participants. The Participants include
securities brokers and dealers (including the Initial Purchaser), banks, trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to other entities such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own securities
held by or on behalf of DTC only through the Participants or the Indirect
Participants. The ownership interest and transfer of ownership interest of each
actual purchaser of each security held by or on behalf of DTC are recorded on
the records of the Participants and Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established
by it, (i) upon deposit of the Global Senior Debentures, DTC will credit the
accounts of Participants participating in the exchange with the respective
principal amounts of the Senior Debentures represented by such Global Senior
Debenture and (ii) ownership of such interests in the Global Senior Debentures
will be shown on, and the transfer of ownership thereof will be effected only
through, records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Senior Debentures).
Investors in the Global Senior Debentures may hold their interests therein
directly through DTC if they are participants in such system, or indirectly
through organizations which are participants in such system. All interests in a
Global Senior Debenture may be subject to the procedures and requirements of
DTC. The laws of some states require that certain persons take physical delivery
in certificated form of securities that they own. Consequently, the ability to
transfer beneficial interests in a Global Senior Debenture to such persons will
be limited to that extent. Because DTC can act only on behalf of Participants,
which in turn act on behalf of Indirect Participants and certain banks, the
ability of a person having beneficial interests in a Global Senior Debenture to
pledge such interests to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests. For certain
other restrictions on the transferability of the Senior Debentures, see
"-- Exchange of Book-Entry Senior Debentures for Certificated Senior Debentures"
and "-- Exchange of Certificated Senior Debentures for Book-Entry Senior
Debentures."
Except as described below, owners of interests in the Global Senior
Debentures will not have Senior Debentures registered in their name, will not
receive physical delivery of Senior Debentures in certificated form and will not
be considered the registered owners or holders thereof for any purpose.
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<PAGE> 39
Payments in respect of the Global Senior Debentures registered in the name
of DTC or its nominee will be made to DTC or its nominee, as the case may be, as
the registered owner of the Global Senior Debenture representing such Senior
Debentures. None of the Company, the Trustee, any paying agent or any other
agent of the Company or the Trustee will have any responsibility or liability
for (i) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interests in the Global Senior Debentures, or for maintaining,
supervising or reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in the
Global Senior Debentures or (ii) any other matter relating to the actions and
practices of DTC or any of its Participants or Indirect Participants. DTC has
advised the Company that its current practice, upon receipt of any payment in
respect of securities such as the Senior Debentures, is to credit the accounts
of the relevant Participants with the payment on the payment date, in amounts
proportionate to their beneficial interests in the principal amount of the
Global Senior Debenture as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of Senior
Debentures will be governed by standing instructions and customary practices and
will be the responsibility of the Participants or the Indirect Participants and
will not be the responsibility of DTC, the Trustee or the Company. Neither the
Company nor the Trustee will be liable for any delay by DTC or any of its
Participants in identifying the beneficial owners of the Senior Debentures, and
the Company and the Trustee may conclusively rely on and will be protected in
relying on instructions from DTC or its nominee for all purposes.
Secondary market trading activity in interests in the Global Senior
Debentures will settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its participants. Transfers between
Participants in DTC will be effected in accordance with DTC's procedures, and
will settle in same-day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Exchange Senior Debentures only at the direction of one or
more Participants to whose account with DTC interests in the Global Senior
Debentures are credited and only in respect of such portion of the aggregate
principal amount of the Senior Debentures as to which such Participant or
Participants has or have given such direction. However, if there is an Event of
Default, DTC reserves the right to exchange the Global Senior Debentures for
legended Exchange Senior Debentures in certificated form and to distribute such
Exchange Senior Debentures to its Participants.
The information in this section concerning DTC and their book-entry systems
has been obtained from sources that the Company believe to be reliable, but the
Company takes no responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the Global Senior Debentures among participants in DTC, it is
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Company nor the
Trustee will have any responsibility for the performance by DTC or its
Participants or Indirect Participants of its obligations under the rules and
procedures governing its operations.
EXCHANGE OF BOOK-ENTRY SENIOR DEBENTURES FOR CERTIFICATED SENIOR DEBENTURES
A Global Senior Debenture is exchangeable for Exchange Senior Debentures in
registered certificated form if (i) DTC (x) notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Senior Debenture
and the Company thereupon fails to appoint a successor Depositary within 90 days
or (y) has ceased to be a clearing agency registered under the Exchange Act,
(ii) the Company in its sole discretion elects to cause the issuance of the
Exchange Senior Debentures in certificated form or (iii) there shall have
occurred and be continuing an Event of Default. In all cases, certificated
Exchange Senior Debentures delivered in exchange for any Global Senior Debenture
or beneficial interests therein will be registered in the names, and issued in
any approved denominations, requested by or on behalf of the Depositary (in
accordance with its customary procedures) and will bear the legend referred to
in "Notice to Investors," unless the Trustee determines otherwise in compliance
with applicable law.
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<PAGE> 40
EXCHANGE OF CERTIFICATED SENIOR DEBENTURES FOR BOOK-ENTRY SENIOR DEBENTURES
Other Exchange Senior Debentures issued in certificated form may not be
exchanged for beneficial interests in any Global Senior Debenture unless such
exchange occurs in connection with a transfer of such Exchange Senior Debentures
and the transferor first delivers to the Trustee a written certificate (in the
form provided in the Indenture) to the effect that such transfer will comply
with the appropriate transfer restrictions applicable to such Senior Debentures.
PAYMENT AND PAYING AGENT
Payments in respect of the Exchange Senior Debentures held in global form
shall be made to the Depositary, which shall credit the relevant accounts at the
Depositary on the applicable Interest Payment Dates or in respect of the
Exchange Senior Debentures that are not held by the Depositary, such payments
shall be made by check mailed to the address of the holder entitled thereto as
such address shall appear on the register. The paying agent (the "Paying Agent")
shall initially be the Trustee and any co-paying agent chosen by the Trustee and
acceptable to the Company.
REGISTRAR AND TRANSFER AGENT
The Trustee will act as registrar and transfer agent for the Exchange
Senior Debentures.
Registration of transfers of the Exchange Senior Debentures will be
effected without charge by or on behalf of the Company, but upon payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange.
RESTRICTIONS ON TRANSFER
The Exchange Senior Debentures will be issued, and the Senior Debentures
may be transferred only, in blocks having an aggregate principal amount of not
less than $100,000. Any such transfer of Senior Debentures in a block having an
aggregate principal amount of less than $100,000 shall be deemed to be void and
of no legal effect whatsoever. Any such transferee shall be deemed not to be the
holder of such Senior Debentures for any purpose, including but not limited to
the receipt of payments on such Senior Debentures, and such transferee shall be
deemed to have no interest whatsoever in such Senior Debentures.
GOVERNING LAW
The Indenture and the Exchange Senior Debentures will be governed by and
construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE TRUSTEE
The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the request of any
holder of Exchange Senior Debentures, unless offered reasonable indemnity by
such holder against the costs, expenses and liabilities which might be incurred
thereby. The Trustee is not required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if
the Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
DESCRIPTION OF ORIGINAL SENIOR DEBENTURES
The terms of the Original Senior Debentures are identical in all material
respects to the Exchange Senior Debentures, except that (i) the Original Senior
Debentures have not been registered under the Senior Debentures Act, are subject
to certain restrictions on transfer and are entitled to certain rights under the
Registration Agreement (which rights will terminate upon consummation of the
Exchange Offer, except under limited circumstances), and (ii) the Exchange
Senior Debentures will not provide for any liquidated
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<PAGE> 41
damages thereon, except under limited circumstances. Specifically, the
Registration Agreement provides that additional interest will accrue upon the
principal amount of the Original Senior Debentures at a rate of 0.25% in the
event that: (i) neither an Exchange Offer Registration Statement nor a Shelf
Registration Statement with respect to the Senior Debentures is filed with the
Commission on or prior to November 28, 1997; (ii) if neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement is declared
effective by the Commission on or prior to December 28, 1997; (iii) the Company
has not consummated the Exchange Offer prior to January 27, 1998; or (iv) a
Shelf Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any time prior to the
expiration of the period referred to in Rule 144(k) of the Securities Act. The
Registration Agreement provides that additional interest will accrue upon the
principal amount of the Exchange Senior Debentures at a rate of 0.25% after the
consummation of the Exchange Offer only if a Shelf Registration Statement is
required to be filed because of changes in the law or Commission policy and: (i)
the Shelf Registration Statement is not filed within 45 days of an event that
triggers the obligation to file the Shelf Registration Statement; (ii) the Shelf
Registration Statement is not declared effective by the Commission on or prior
to the 30th day after the date such Shelf Registration Statement was required to
be filed; or (iii) a Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective at any time prior
to the expiration of the period referred to in Rule 144(k) of the Securities
Act. Holders of Original Senior Debentures should review the information set
forth under "Risk Factors -- Consequences of a Failure to Exchange Original
Senior Debentures" and "Description of Exchange Senior Debentures."
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Senior Debentures for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Senior Debentures.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Senior Debentures
received in exchange for Original Senior Debentures if such Original Senior
Debentures were acquired by such broker-dealer as a result of market-making
activities or other trading activities.
The Company has agreed that this Prospectus, as it may be amended or
supplemented from time to time, may be used by a Participating Broker-Dealer in
connection with resales of such Exchange Senior Debentures for a period ending
90 days after the Expiration Date (subject to extension under certain limited
circumstances described herein) or, if earlier, when all such Exchange Senior
Debentures have been disposed of by such Participating Broker-Dealer. However, a
Participating Broker-Dealer who intends to use this Prospectus in connection
with the resale of Exchange Senior Debentures received in exchange for Original
Senior Debentures pursuant to the Exchange Offer must notify the Company, or
cause the Company to be notified, on or prior to the Expiration Date, that it is
a Participating Broker-Dealer. Such notice may be given in the space provided
for that purpose in the Letter of Transmittal or may be delivered to the
Exchange Agent at one of the addresses set forth herein under "The Exchange
Offer -- Exchange Agent." See "The Exchange Offer -- Resales of Exchange Senior
Debentures."
The Company will not receive any proceeds from any sale of Exchange Senior
Debentures by broker-dealers. Exchange Senior Debentures received by
broker-dealers for their own accounts pursuant to the Exchange Offer may be sold
from time to time in one or more transactions, in the over-the-counter market,
in negotiated transactions, through the writing of options on the Exchange
Senior Debentures or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Senior Debentures.
Any broker-dealer that resells Exchange Senior Debentures that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Senior Debentures
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit of any such resale of Exchange Senior Debentures and any
commissions or concessions received by any
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<PAGE> 42
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Senior Debentures) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Senior Debentures
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Exchange Senior Debentures and certain matters related
thereto, will be passed upon for the Company by Alston & Bird LLP, Washington,
D.C.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
September 30, 1996, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated by reference, and
have been so incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
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<PAGE> 43
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL
UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 6
Incorporation of Certain Documents by
Reference............................ 6
Summary................................ 7
Risk Factors........................... 13
First Palm Beach Bancorp, Inc.......... 15
Use of Proceeds........................ 17
Ratio of Earnings to Fixed Charges..... 18
Capitalization......................... 19
Selected Consolidated Financial Data... 20
The Exchange Offer..................... 22
Description of Exchange Senior
Debentures........................... 31
Description of Original Senior
Debentures........................... 39
Plan of Distribution................... 40
Legal Matters.......................... 41
Experts................................ 41
</TABLE>
$35,000,000
FIRST PALM BEACH
BANCORP, INC.
OFFER TO EXCHANGE ITS
SERIES B 10.35% SENIOR DEBENTURES
DUE 2002
(PRINCIPAL AMOUNT $1,000
PER SENIOR DEBENTURE)
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933,
AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A 10.35% SENIOR DEBENTURES
DUE 2002
(PRINCIPAL AMOUNT $1,000
PER SENIOR DEBENTURE)
--------------------
PROSPECTUS
--------------------
, 1997
- ------------------------------------------------------
------------------------------------------------------
- ------------------------------------------------------
------------------------------------------------------
<PAGE> 44
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation of the Registrant provides as
follows:
TENTH:
A. Each person who was or is made a party or is threatened to be made
a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a Director
or an Officer of the Corporation or is or was serving at the request of
the Corporation as a Director, Officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a Director, Officer, employee
or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
such law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith; provided, however, that, except as provided in
Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation.
B. The right to indemnification conferred in Section A of this
Article TENTH shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter and "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her capacity
as a Director of Officer (and not in any other capacity in which service
was or is rendered by such indemnitee, including, without limitation,
services to an employee benefit plan) shall be made only upon delivery to
the Corporation of an undertaking (hereinafter an "undertaking"), by or
on behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which
there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses
under this Section or otherwise. The rights to indemnification and to
the advancement of expenses conferred in Sections A and B of this
Article TENTH shall be contract rights and such rights shall continue as
to an indemnitee who has ceased to be a Director, Officer, employee or
agent and shall inure to the benefit of the indemnitee's heirs, executors
and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid
in full by the Corporation within sixty days after a written claim has
been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. In (i) any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit
by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking the Corporation shall be entitled to
II-1
<PAGE> 45
recover such expenses upon a final adjudication that, the indemnitee has
not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of
such suit that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has
not met such applicable standard of conduct, shall create a presumption
that the indemnitee has not met the applicable standard of conduct or, in
the case of such a suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under
this Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right
which any person may have of hereafter acquire under any statute, the
Corporation's Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to
the fullest extent of the provisions of this Article TENTH with respect
to the indemnification and advancement of expenses of Directors and
Officers of the Corporation.
In addition, the Registrant has entered into certain employment and
change in control agreements with its executive officers which generally
provide for the indemnification of such persons to the fullest extent
permitted by Delaware Law and obligate the Registrant to maintain
directors' and officers' liability insurance.
ITEM 21. EXHIBITS.
The following exhibits are filed herein or have been, as noted,
previously filed:
NUMBER EXHIBIT
------ ----------------------------------------------------
3.1 Certificate of Incorporation of the Company
(incorporated by reference from Exhibits to
Form S-1 Registration Statement initially filed on
June 9, 1993, Registration No. 33-64164).
Certificate of amendment to the Company's
Certificate of Incorporation (incorporated by
reference from Form 10-Q filed on May 12, 1995,
File No. 0-21942).
3.2 Bylaws of Company (incorporated by reference from
the Exhibits to Form S-1 Registration Statement
initially filed on June 9, 1993, Registration
No. 33-64174).
II-2
<PAGE> 46
4.1 Indenture dated as of June 30, 1997 by and between
the Registrant and the Bank of New York, as
Trustee, relating to the Registrants' 10.35% Senior
Debenture due June 30, 2002.
4.2 Form of 10.35% Senior Debenture due June 30, 2002
(included in the Indenture filed as Exhibit 4.1
hereto).
5.1 Form of Opinion and consent of Alston & Bird LLP as
to validity of the Exchange Senior Series B
Debentures to be issued by the Company.
10.1 Registration Rights Agreement dated June 30, 1997
by and between the Registrant and Keefe Bruyette &
Woods, Inc. as the Initial Purchaser.
10.2 First Federal Savings and Loan Association of the
Palm Beaches Recognition and Retention Plan for
Outside Directors (incorporated by reference from
Form 10-K filed December 26, 1996, File
No. 0-21942).
10.3 First Palm Beach Bancorp, Inc. Incentive Stock
Option Plan for Officers and Employees
(incorporated by reference from the Proxy Statement
for the 1993 Annual Meeting of Stockholders filed
on December 17, 1993, File No. 0-21942).
10.4 First Palm Beach Bancorp, Inc. Stock Option Plan
for outside Directors (incorporated by reference
from Form 10-K filed December 26, 1996
File No. 0-21942).
10.5 Employees Pension Plan of First Federal Savings and
Loan Association of the Palm Beaches (incorporated
by reference from Form 10-K filed on December 29,
1994, File No. 0-21942).
10.6 Supplemental Retirement Income Agreement between
First Federal Savings and Loan Association of the
Palm Beaches and William W. Lynch (incorporated by
reference from Form 10-K filed on December 29,
1994, File No. 0-21942).
10.7 First Federal Savings and Loan Association of the
Palm Beaches Amended and Restated Employee
Severance Compensation Plan (incorporated by
reference from Form 10-K filed on December 29,
1994, File No. 0-21942).
10.8 Amendment to First Federal Savings and Loan
Association of the Palm Beaches Recognition and
Retention Plan for Outside Directors (incorporated
by reference from Form 10-K filed on December 26,
1996, File No. 0-21942).
10.9 Amendment to First Palm Beach Bancorp, Inc. Stock
Option Plan for Outside Directors (incorporated by
reference from Form 10-K filed on
December 26, 1996, File No. 0-21942).
10.10 Change of Control Agreement between First Palm
Beach Bancorp, Inc. and Alissa Ballot, dated as of
May 20, 1997 (incorporated by reference from Form
10-Q filed August 13, 1997, File No. 0-21942).
10.11 Change of Control Agreement between First Bank of
Florida and Alissa Ballot, dated as of May 20, 1997
(incorporated by reference from Form 10-Q filed
August 13, 1997, File No. 0-21942).
10.12 Change of Control Agreement between First Palm
Beach Bancorp, Inc. and Calvin L. Cearley, dated as
of June 30, 1997 (incorporated by reference from
Form 10-Q filed August 13, 1997, File No. 0-21942).
II-3
<PAGE> 47
10.13 Change of Control Agreement between First Bank of
Florida and Calvin L. Cearley, dated as of June 30,
1997 (incorporated by reference from Form 10-Q
filed August 13, 1997, File No. 0-21942).
10.14 Employment Agreement between First Palm Beach
Bancorp, Inc. and Louis O. Davis, Jr., dated as of
May 20, 1997 (incorporated by reference from Form
10-Q filed August 13, 1997, File No. 0-21942).
10.15 Employment Agreement between First Bank of Florida
and Louis O. Davis, dated as of May 20, 1997
(incorporated by reference from Form 10-Q filed
August 13, 1997, File No. 0-21942).
10.16 Change of Control Agreement between First Palm
Beach Bancorp, Inc. and Rita Groton, dated as of
May 20, 1997 (incorporated by reference from Form
10-Q filed August 13, 1997, File No. 0-21942).
10.17 Change of Control Agreement between First Bank of
Florida and Rita Groton, dated as of May 20, 1997
(incorporated by reference from Form 10-Q filed
August 13, 1997, File No. 0-21942).
10.18 Employment Agreement between First Palm Beach
Bancorp, Inc. and R. Randy Guemple, dated as of May
20, 1997 (incorporated by reference from Form 10-Q
filed August 13, 1997, File No. 0-21942).
10.19 Employment Agreement between First Bank of Florida
and R. Randy Guemple, dated as of May 20, 1997
(incorporated by reference from Form 10-Q filed
August 13, 1997, File No. 0-21942).
10.20 Change of Control Agreement between First Palm
Beach Bancorp, Inc. and John Rudy, dated as of May
20, 1997 (incorporated by reference from Form 10-Q
filed August 13, 1997, File No. 0-21942).
10.21 Change of Control Agreement between First Bank of
Florida and John Rudy, dated as of May 20, 1997
(incorporated by reference from Form 10-Q filed
August 13, 1997, File No. 0-21942).
10.22 Change of Control Agreement between First Palm
Beach Bancorp, Inc. and Linda O. Terrell, dated as
of May 20, 1997 (incorporated by reference from
Form 10-Q filed August 13, 1997, File No. 0-21942).
10.23 Change of Control Agreement between First Bank of
Florida and Linda O. Terrell, dated as of May 20,
1997 (incorporated by reference from Form 10-Q
filed August 13, 1997, File No. 0-21942).
10.24 Change of Control Agreement between First Palm
Beach Bancorp, Inc. and John Trammel, dated as of
May 20, 1997 (incorporated by reference from Form
10-Q filed August 13, 1997, File No. 0-21942).
10.25 Change of Control Agreement between First Bank of
Florida and John Trammel, dated as of May 20, 1997
(incorporated by reference from Form 10-Q filed
August 13, 1997, File No. 0-21942).
10.26 Consulting Agreement between First Federal Savings
and Loan Association of the Palm Beaches and
William W. Lynch (incorporated by reference from
Form 10-K filed on December 29, 1994, File No.
0-21942).
12.1 Computation of ratio of earnings to fixed charges.
II-4
<PAGE> 48
23.1 Consent of Deloitte & Touche LLP.
23.3 Consent of Alston & Bird LLP (included in Exhibit
5.1).
25.1 Form T-1 Statement of Eligibility of The Bank of
New York to act as trustee under the Indenture for
the benefit of the holders of Exchange Senior
Debentures of the Company.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Exchange Agent Agreement.
99.4 Form of Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
99.5 Form of Letter to Clients.
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 1s(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
(3) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of
this Form S-4, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other equally
prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through
the date of responding to the request.
(4) To supply by means of a post-effective amendment all
information concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in the
registration statement when it became effective.
(5) That prior to any public reoffering of the securities
registered hereunder through the use of a prospectus which is a part of
this registration statement, by any person or party who is deemed to be
II-5
<PAGE> 49
an underwriter within the meaning of Rule 145(c), the issuer undertakes
that such reoffering prospectus will contain the information called for
by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information
called for by the other items of the applicable form.
(6) That every prospectus: (i) that is filed pursuant to Paragraph
(5) immediately preceding, or (ii) that purports to meet the requirements
of Section 10(a)(3) of the Act and is used in connection with an offering
of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE> 50
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of West Palm
Beach, State of Florida on this the 19th day of August, 1997.
REGISTRANT
FIRST PALM BEACH BANCORP, INC.
By: /s/ LOUIS O. DAVIS, JR.
------------------------------------------------
Louis O. Davis, Jr.
President, Chief Executive Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Louis O. Davis, Jr. and R. Randy Guemple and
each of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her
name, place, and stead, in any and all capacities, to sign any or all
amendments to this registration statement, and to file the same with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on the 19th day of August, 1997.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ WILLIAM W. LYNCH
- ----------------------- Chairman of the Board August 19, 1997
William W. Lynch
/s/ LOUIS O. DAVIS, JR.
- ----------------------- President, Chief Executive Officer August 19, 1997
Louis O. Davis, Jr. and Director
/s/ R. RANDY GUEMPLE
- ----------------------- Chief Financial Officer August 19, 1997
R. Randy Guemple and Treasurer
/s/ EDWARD M. EISSEY
- ----------------------- Vice Chairman of the Board August 19, 1997
Edward M. Eissey
II-7
<PAGE> 51
SIGNATURES TITLE DATE
---------- ----- ----
/s/ TED R. MOFFETT, JR.
- ---------------------------- Director August 19, 1997
Ted R. Moffett, Jr.
/s/ FRED A. GREENE
- ---------------------------- Director August 19, 1997
Fred A. Greene
/s/ ROBERT P. MILLER
- ---------------------------- Director August 19, 1997
Robert P. Miller
/s/ HOLLY W. HADLEY, M.D.
- ---------------------------- Director August 19, 1997
Holly W. Hadley, M.D.
/s/ DANIEL O. SOKOLOFF, M.D.
- ---------------------------- Director August 19, 1997
Daniel O. Sokoloff, M.D.
II-8
<PAGE> 52
EXHIBIT INDEX
SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
-------- -------------------------------------------- ---------------
4.1 Indenture dated as of June 30, 1997 by and
between the Registrant and the Bank of New
York, as Trustee, relating to the
Registrants' 10.35% Senior Debenture due
June 30, 2002..............................
4.2 Form of 10.35% Senior Debenture due
June 30, 2002 (included in the Indenture
filed as Exhibit 4.1 hereto)...............
5.1 Opinion and consent of Alston & Bird LLP as
to validity of the Exchange Senior
Debentures to be issued by the Company
(to be filed by amendment).................
10.1 Registration Rights Agreement dated June 30,
1997 by and between the Registrant and Keefe
Bruyette & Woods, Inc. as the Initial
Purchaser..................................
10.10 Change of Control Agreement between First
Palm Beach Bancorp, Inc. and Alissa Ballot,
dated as of May 20, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.11 Change of Control Agreement between First
Bank of Florida and Alissa Ballot, dated as
of May 20, 1997 (incorporated by reference
from Form 10-Q filed August 13, 1997 File
No. 0-21942)...............................
10.12 Change of Control Agreement between First
Palm Beach Bancorp, Inc. and Calvin L.
Cearley, dated as of June 30, 1997
(incorporated by reference from Form 10-Q
filed August 13, 1997 File No. 0-21942)....
10.13 Change of Control Agreement between First
Bank of Florida and Calvin L. Cearley, dated
as of June 30, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.14 Employment Agreement between First Palm
Beach Bancorp, Inc. and Louis O. Davis, Jr.,
dated as of May 20, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.15 Employment Agreement between First Bank of
Florida and Louis O. Davis, dated as of May
20, 1997 (incorporated by reference from
Form 10-Q filed August 13, 1997 File No.
0-21942)...................................
10.16 Change of Control Agreement between First
Palm Beach Bancorp, Inc. and Rita Groton,
dated as of May 20, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.17 Change of Control Agreement between First
Bank of Florida and Rita Groton, dated as of
May 20, 1997 (incorporated by reference from
Form 10-Q filed August 13, 1997 File No.
0-21942)..................................
II-9
<PAGE> 53
10.18 Employment Agreement between First Palm
Beach Bancorp, Inc. and R. Randy Guemple,
dated as of May 20, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.19 Employment Agreement between First Bank of
Florida and R. Randy Guemple, dated as of
May 20, 1997 (incorporated by reference from
Form 10-Q filed August 13, 1997 File No.
0-21942)...................................
10.20 Change of Control Agreement between First
Palm Beach Bancorp, Inc. and John Rudy,
dated as of May 20, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.21 Change of Control Agreement between First
Bank of Florida and John Rudy, dated as of
May 20, 1997 (incorporated by reference from
Form 10-Q filed August 13, 1997 File No.
0-21942)...................................
10.22 Change of Control Agreement between First
Palm Beach Bancorp, Inc. and Linda O.
Terrell, dated as of May 20, 1997
(incorporated by reference from Form 10-Q
filed August 13, 1997 File No. 0-21942)....
10.23 Change of Control Agreement between First
Bank of Florida and Linda O. Terrell, dated
as of May 20, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.24 Change of Control Agreement between First
Palm Beach Bancorp, Inc. and John Trammel,
dated as of May 20, 1997 (incorporated by
reference from Form 10-Q filed August 13,
1997 File No. 0-21942).....................
10.25 Change of Control Agreement between First
Bank of Florida and John Trammel, dated as
of May 20, 1997 (incorporated by reference
from Form 10-Q filed August 13, 1997 File
No. 0-21942)...............................
10.26 Consulting Agreement between First Federal
Savings and Loan Association of the Palm
Beaches and William W. Lynch (incorporated
by reference from Form 10-K filed on
December 29, 1994, File No. 0-21942).......
12.1 Computation of ratio of earnings to fixed
charges....................................
23.1 Consent of Deloitte & Touche LLP...........
23.3 Consent of Alston & Bird LLP (included in
Exhibit 5.1)...............................
25.1 Form T-1 Statement of Eligibility of The
Bank of New York to act as trustee under the
Indenture for the benefit of the holders of
Exchange Senior Debentures of the Company..
99.1 Form of Letter of Transmittal..............
99.2 Form of Notice of Guaranteed Delivery......
II-10
<PAGE> 54
99.3 Form of Exchange Agent Agreement...........
99.4 Form of Letter to Brokers, Dealers,
Commercial Banks, Trust Companies and Other
Nominees...................................
99.5 Form of Letter to Clients..................
II-11
<PAGE> 1
EXHIBIT 4.1
================================================================================
FIRST PALM BEACH BANCORP, INC.
------------------------------
------------------------------
INDENTURE
Dated as of June 30, 1997
------------------------------
THE BANK OF NEW YORK
as Trustee
------------------------------
10.35% SENIOR DEBENTURES DUE 2002
================================================================================
<PAGE> 2
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
June 30, 1997 between First Palm Beach Bancorp, Inc. and The Bank of New York,
Trustee:
<TABLE>
<CAPTION>
ACT SECTION INDENTURE SECTION
<S> <C>
310(a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a) (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(a) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.06.10, 6.11
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a), 4.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(c) (1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
314(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
315(a) (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
316(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
</TABLE>
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capitalized Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Tangible Equity Capital . . . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Definitive Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discharged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness for Money Borrowed . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
OTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Subsidiary Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
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Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Series A Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Series B Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stockholders' Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.01 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.03 Form and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.04 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.05 Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.07 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.08 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.10 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.11 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE III PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . 16
SECTION 3.02. Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . 16
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . 16
SECTION 3.04. Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.05. Certificate to Trustee . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.06. Compliance with Consolidation Provisions . . . . . . . . . . . . . . 18
SECTION 3.07. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.08. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.09. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . 18
SECTION 3.10. Limitation Upon Disposition of Stock or Assets of the Bank . . . . . 19
SECTION 3.11. Limitation on Funded Indebtedness and Indebtedness . . . . . . . . . 20
SECTION 3.12. Consolidated Tangible Equity Capital . . . . . . . . . . . . . . . . 20
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SECTION 3.13. Restrictions as to Dividends and Certain Other Payments . . . . . . . 20
SECTION 3.14. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.15. Limitation on Incurrence of Indebtedness by Subsidiaries . . . . . . 21
SECTION 3.16 Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.17 Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . 21
ARTICLE IV SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE . . . . . . . . . 21
SECTION 4.01 Securityholders' List . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.02 Preservation and Disclosure Lists . . . . . . . . . . . . . . . . . . 21
SECTION 4.03 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.04 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT . . . . . . . . . . 24
SECTION 5.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.02 Payment of Securities on Default; Suit Therefor. . . . . . . . . . . 26
SECTION 5.03 Application of Moneys Collected by Trustee . . . . . . . . . . . . . 28
SECTION 5.04 Proceedings by Securityholders. . . . . . . . . . . . . . . . . . . . 28
SECTION 5.05 Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.06 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . 30
SECTION 5.07 Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.08 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.09 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VI CONCERNING THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.01 Duties and Responsibilities of Trustee . . . . . . . . . . . . . . . 31
SECTION 6.02 Reliance on Documents, Opinions, etc. . . . . . . . . . . . . . . . . 32
SECTION 6.03 No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . 34
SECTION 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents
or Registrar May Own Securities . . . . . . . . . . . . . . . . . . . 34
SECTION 6.05 Moneys to be Held in Trust. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.06 Compensation and Expenses of Trustee. . . . . . . . . . . . . . . . . 34
SECTION 6.07 Officers' Certificates as Evidence. . . . . . . . . . . . . . . . . . 35
SECTION 6.08 Conflicting Interest of Trustee. . . . . . . . . . . . . . . . . . . 35
SECTION 6.09 Eligibility of Trustee. . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.10 Resignation or Removal of Trustee. . . . . . . . . . . . . . . . . . 36
SECTION 6.11 Acceptance by Successor Trustee. . . . . . . . . . . . . . . . . . . 37
SECTION 6.12 Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.13 Limitation on Rights of Trustee as a Creditor. . . . . . . . . . . . 38
SECTION 6.14 Authenticating Agents. . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VII CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.01 Action by Securityholders. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.02 Proof of Execution by Securityholders. . . . . . . . . . . . . . . . 40
SECTION 7.03 Who are Deemed Absolute Owners. . . . . . . . . . . . . . . . . . . . 41
SECTION 7.04 Securities Owned by Company Deemed Not Outstanding. . . . . . . . . . 41
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SECTION 7.05 Revocation of Consents; Future holders Bound . . . . . . . . . . . . 41
ARTICLE VIII SECURITYHOLDERS' MEETING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.01 Purposes of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.02 Call of Meetings by Trustee. . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.03 Call of Meetings by Company or Securityholders. . . . . . . . . . . . 42
SECTION 8.04 Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 8.05 Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 8.06 Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE IX AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.01 Without Consent of Securityholders. . . . . . . . . . . . . . . . . . 45
SECTION 9.02 With Consent of Securityholders. . . . . . . . . . . . . . . . . . . 46
SECTION 9.03 Compliance with Trust Indenture Act of 1939; Effect of
Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.04 Notation on Securities. . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE X CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE . . . . . . . . . . . . . . . . 48
SECTION 10.01 Company May Consolidate, etc., on Certain Terms. . . . . . . . . . . 48
SECTION 10.02 Successor Corporation to be Substituted for Company. . . . . . . . . 48
SECTION 10.03 Opinion of Counsel to be Given Trustee. . . . . . . . . . . . . . . . 49
ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.01 Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.02 Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 11.03 Paying Agent to Repay Moneys Held. . . . . . . . . . . . . . . . . . 50
SECTION 11.04 Return of Unclaimed Moneys. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS . . . . . . . . . 52
SECTION 12.01 Indenture and Securities Solely Corporate Obligations. . . . . . . . 52
ARTICLE XIII MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 13.01 Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 13.02 Official Acts by Successor Corporation. . . . . . . . . . . . . . . . 52
SECTION 13.03 Surrender of Company Powers. . . . . . . . . . . . . . . . . . . . . 53
SECTION 13.04 Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 13.05 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 13.06 Evidence of Compliance with Conditions Precedent. . . . . . . . . . . 53
SECTION 13.07 Business Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 13.08 Trust Indenture Act of 1939 to Control. . . . . . . . . . . . . . . . 54
SECTION 13.09 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . 54
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SECTION 13.10 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 13.11 Separability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 13.12 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B1
</TABLE>
Testimonium
Signatures
Acknowledgments
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE,
BE DEEMED TO BE A PART OF THE INDENTURE
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<PAGE> 8
THIS INDENTURE, dated as of June 30, 1997, between First Palm
Beach Bancorp, Inc., a Delaware corporation (hereinafter sometimes called the
"Company"), and The Bank of New York, a New York banking corporation, as
trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H
In consideration of the premises, and the purchase of the
unsecured and unsubordinated Securities by the holders thereof, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit
of the respective holders from time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act of 1939"), or which
are by reference therein defined in the Securities Act, shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture as originally
executed. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. Headings are used for convenience of
reference only and do not affect interpretation. The singular includes the
plural and vice versa.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding the power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f)
if the specified Person is an individual, any entity of which the specified
Person is an officer, director or general partner.
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"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bank" means (i) any institution which accepts deposits that the
depositor has a legal right to withdraw on demand and engages in the business
of making loans, and (ii) any trust company.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean, with respect to any series of Securities,
any day other than a Saturday or a Sunday or a day on which banking
institutions in The City of New York or West Palm Beach, Florida are authorized
or required by law or executive order to close.
"Capitalized Lease" shall mean any rental obligation which, under
generally accepted accounting principles, is or will be required to be
capitalized on the books of the Company or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"Commission" shall mean the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act of 1939,
then the body performing such duties at such time.
"Common Stock" shall mean the Common Stock, par value $1.00 per share,
of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Company" shall mean First Palm Beach Bancorp, Inc., a Delaware
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Company Request" or "Company Order" shall mean a written request or
order signed in the name of the Company by the Chairman, the Chief Executive
Officer, the President, a Vice Chairman, a Vice President, the Comptroller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Consolidated Net Worth" shall mean Stockholders' Equity plus the
General Valuation Allowance for Loan Losses plus Deferred Loan Fees.
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"Consolidated Tangible Equity Capital" shall mean Consolidated Net
Worth minus Goodwill.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defeasance Agent" shall have the meaning set forth in Section 11.05.
"Definitive Securities" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to Section 2.05(c).
"Discharged" shall have the meaning set forth in Section 11.05.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice,
if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement by the Company to exchange Series B Securities
for Series A Securities.
"Funded Indebtedness" shall mean all Indebtedness that matures more
than one year from the date of creation thereof, or that is extendible or
renewable at the option of any party thereto to a date more than one year from
the date of creation thereof (whether or not renewed or extended).
"Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Indebtedness" shall mean all indebtedness, liabilities and other
obligations direct or contingent (other than deferred income taxes and other
credits, outside minority interests and items of Stockholders' Equity) which
would, in accordance with generally accepted accounting
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principles, be classified upon the consolidated balance sheet of the Company as
liabilities, but in any event including without limitation:
(a) all guarantees, other than (i) guarantees on secured
Indebtedness and (ii) guarantees of obligations of Subsidiaries under
employment and change in control agreements;
(b) all indebtedness, liabilities and other obligations
arising under any conditional sale or other title retention agreement,
whether or not the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or
sale of such property; provided, however, that the terms "Funded
Indebtedness" and "Indebtedness" shall not include any obligation of
the Company or of any Subsidiary incurred in the ordinary course of
its business, with respect to:
(1) any deposits with it or funds collected by
it;
(2) any banker's acceptance or letter of credit
issued by it;
(3) any check, note, certificate of deposit,
money order, traveler's check, draft or bill of exchange
issued, accepted or endorsed by it;
(4) any discount with, borrowing from, or other
obligation to any Federal Reserve Bank, the Federal Deposit
Insurance Corporation or any Federal Home Loan Bank (or
successor organization) which discount or borrowing is in the
ordinary course of its banking business and not incurred in
connection with any unusual or extraordinary "rescue loan" or
substantially similar investment by such Federal Reserve Bank,
the Federal Deposit Insurance Corporation or the Federal Home
Loan Bank (or successor organization);
(5) any agreement, made by it in the ordinary
course of its banking business, to purchase or repurchase
securities, loans or federal funds, or to participate in any
such purchase or repurchase;
(6) any transaction made by it in the ordinary
course of its banking business in the nature of any extension
of credit, whether in the form of a commitment, guarantee or
otherwise, undertaken by it for the account of a third party
with the application by it of the same banking considerations
and legal lending limits that would be applicable if the
transaction were a loan to such party;
(7) any transaction in which it acts solely in a
fiduciary or agency capacity;
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(8) other obligations incurred by it in the
ordinary course of its banking, mortgage banking or trust
business to its customers solely in their capacities as such;
(9) any other liability or obligation of such
Subsidiary incurred in the ordinary course of its banking
business not involving any obligation for borrowed money;
(10) Capitalized Leases;
(11) any borrowings under mortgage warehousing
lines of credit;
(12) any borrowings under the Company's revolving
line of credit with a maturity date of less than one year up
to an aggregate amount at any time outstanding equal to 30% of
Consolidated Net Worth; and
(13) drafts outstanding or official bank checks
outstanding used to fund mortgage loan volume;
provided, however, that notwithstanding the foregoing,
Indebtedness shall not be deemed to include the guaranty by
the Company of any secured Indebtedness of any Subsidiary
which is permitted to be incurred pursuant to subsection 3.15.
"Indebtedness for Money Borrowed" shall mean any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments.
"Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
"Interest Payment Date" shall have the meaning set forth in Section
2.06.
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement.
"Maturity Date" shall mean June 30, 2002.
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers" shall mean any of the Chairman, a Vice Chairman, the Chief
Executive Officer, the President, a Vice President, the Comptroller, the
Secretary or an Assistant Secretary of the Company.
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"Officers' Certificate" shall mean a certificate signed by two
Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
be an employee of the Company, and who shall be acceptable to the Trustee.
"OTS" means the Office of Thrift Supervision or any successor to the
regulatory or supervisory oversight responsibility thereof.
The term "Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
the Authenticating Agent or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which
other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.08 unless proof satisfactory to the Company
and the Trustee is presented that any such Securities are held by bona
fide holders in due course.
"Person" shall mean any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Security.
"Principal Office of the Trustee," or other similar term, shall mean
the principal office of the Trustee, at which at any particular time its
corporate trust business shall be administered.
"Principal Subsidiary Bank" means any Subsidiary which is a bank or
savings association and has total assets equal to 30 percent or more of the
consolidated assets of the Company determined as of the date of the most recent
audited financial statements of such entities.
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"Purchase Agreement" shall mean the Purchase Agreement dated June 26,
1997 between the Company and the Initial Purchaser named therein.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 30, 1997, by and between the Company and the
Initial Purchaser named therein as such agreement may be amended, modified or
supplemented from time to time.
"Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Responsible Officer" shall mean any vice president, any assistant
vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Security" shall mean Securities that bear or are required
to bear the legends set forth in Exhibit A hereto.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or under any similar rule or regulation hereafter
adopted by the Commission.
"Securities" means, collectively, the Series A Securities and the
Series B Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securityholder," "holder of Securities," or other similar terms,
shall mean any person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Security Register" shall mean any security register maintained by a
security registrar for the Securities appointed by the Company.
"Series A Securities" means the Company's 10.35% Series A Senior
Debentures Due 2002, as authenticated and issued under this Indenture.
"Series B Securities" means the Company's 10.35% Series B Senior
Debentures Due 2002, as authenticated and issued under this Indenture.
"Stockholders' Equity," "Allowance for Loan Losses," "Deferred Loan
Fees," "Consolidated Assets," "Net Income," "Consolidated Net Loss," and
"Goodwill" shall be defined according to generally accepted accounting
principles applicable to the Company and in effect on the date the Debentures
are issued.
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<PAGE> 15
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries, and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner.
"Trustee" shall mean the Person identified as "Trustee," in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder. The term
"Trustee" as used with respect to a particular series of the Securities shall
mean the trustee with respect to that series.
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act of
1939 as in force at the date of execution of this Indenture, except as provided
in Section 9.03.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have
contingent voting rights).
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A, the terms of which are incorporated
in and made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Security shall be dated the date
of its authentication. The Securities shall be issued in minimum denominations
of $100,000 and integral multiples of $1,000 above $100,000.
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SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature in the manner set forth in Exhibit A. If an officer whose
signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture. The
form of Trustee's certificate of authentication to be borne by the Securities
shall be substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a Company Order, authenticate for original
issue up to, and the aggregate principal amount of Securities outstanding at
any time may not exceed $35,000,000 aggregate principal amount of the
Securities, except as provided in Sections 2.07, 2.08 and 2.09. The series of
Securities to be initially issued hereunder shall be the Series A Securities.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of,
premium, if any, and interest on the Securities issued in certificated form
will be payable, the transfer of such Securities will be registrable and such
Securities will be exchangeable for Securities bearing identical terms and
provisions at the office or agency of the Company maintained for such purpose
under Section 3.02; provided, however, that payment of interest with respect to
Securities (other than a Global Security) may be made at the option of the
Company (i) by check mailed to the holder at such address as shall appear in
the Security Register or (ii) by transfer to an account maintained by the
Person entitled thereto, provided that proper transfer instructions have been
received in writing by the relevant record date.
SECTION 2.04. Legends.
(a) Except as permitted by subsection (b) of this Section 2.04 or
as otherwise determined by the Company in accordance with applicable law, each
Security shall bear the applicable legends relating to restrictions on transfer
pursuant to the securities laws in substantially the form set forth on Exhibit
A hereto.
(b) In the event of an Exchange Offer, the Company shall issue and
the Trustee shall authenticate Series B Securities in exchange for Series A
Securities accepted for exchange in the Exchange Offer, which Series B
Securities shall not bear the legends required by subsection (a) above, in each
case unless the holder of such Series A Securities is either (A) a broker
dealer who purchased such Series A Securities directly from the Company for
resale pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of the Series A
Securities or (C) a Person who is an affiliate (as defined in Rule 144 under
the Securities Act) of the Company.
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SECTION 2.05. Global Security.
(a) The Global Securities shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon, except to the extent
that any definitive Securities are issued and outstanding and; provided, that
the aggregate amount of Outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges.
Any endorsement of a Global Security to reflect the amount of any increase or
decrease in the amount of Outstanding Securities represented thereby shall be
made by the Trustee, in accordance with instructions given by the Company as
required by this Section 2.05.
(b) The Global Securities may be transferred, in whole but not in
part, only to the Depositary, another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of
such successor Depositary.
(c) Definitive Securities may not be exchanged for a beneficial
interest in Global Securities except to the extent that such exchange occurs in
connection with a transfer of Definitive Securities as set forth in this
Article II and the transferor of such Securities is a nominee of the Depositary
or any successor Depositary and first delivers to the Trustee a written
certificate (in the form provided in the Indenture) to the effect that such
transfer will comply with the appropriate transfer restrictions applicable to
such Senior Debentures.
(d) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to
be a clearing agency registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
the Company will execute, and the Trustee, upon written notice from the
Company, will authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such
Global Security. If there is an Event of Default, the Depositary shall have
the right to exchange the Global Securities for Definitive Securities. In
addition, the Company may at any time determine that the Securities shall no
longer be represented by a Global Security. In the event of such an Event of
Default or such a determination, the Company shall execute, and subject to
Section 2.07, the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and make available for
delivery the Definitive Securities, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security. Upon the exchange of the Global Security
for such Definitive Securities, in authorized denominations, the Global
Security shall be cancelled by the Trustee. Such Definitive Securities issued
in exchange for the Global Security shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Definitive Securities to the Depositary for
delivery to the Persons in whose names such Definitive Securities are so
registered.
SECTION 2.06. Interest.
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(a) Each outstanding Security will bear interest at the rate of
10.35% per annum (the "Coupon Rate") from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from June 30, 1997, until the principal thereof becomes due
and payable, and at the Coupon Rate on any overdue principal (and premium, if
any) and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest, compounded
semi-annually, payable semi-annually in arrears on June 30 and December 31 of
each year (each, an "Interest Payment Date") commencing on December 31, 1997,
to the Person in whose name such Security or any predecessor Security is
registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the month in which
the relevant Interest Payment Date falls.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. In the event that any Interest Payment
Date falls on a day that is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that if such succeeding Business Day falls in the next
succeeding calendar year, then such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
SECTION 2.07. Transfer and Exchange.
(a) Transfer Restrictions.
(1) The Series A Securities, and those Series B
Securities with respect to which any Person described in Section
2.04(b)(A), (B) or (C) is the beneficial owner, may not be transferred
except in compliance with the legend contained in Exhibit A unless
otherwise determined by the Company in accordance with applicable law.
(2) Except as otherwise provided in Subsection (a)(3) of
this Section 2.07 below, Securities issued upon the transfer, exchange
or replacement of Securities bearing the legend contained in Exhibit A
hereto, or if a request is made to remove such legend on the
Securities, the Securities so issued shall bear the legend, or the
legend shall not be removed, as the case may be, unless there is
delivered to the Company such satisfactory evidence, which shall
include an Opinion of Counsel, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof are made pursuant to an exception from the
registration requirements of the Securities Act or, with respect to
Restricted Securities, that such Securities are not "restricted"
within the meaning of Rule 144 of the Securities Act.
(3) The Securities will be issued and may be transferred
only in blocks having an aggregate principal amount of not less than
$100,000. Any such transfer of the Securities in a block having an
aggregate principal amount of less than $100,000 shall be deemed to be
voided and of no legal effect whatsoever. Any such transferee shall
be deemed not to be a holder of such Securities for any purpose,
including, but not limited to
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<PAGE> 19
the receipt of payments on such Securities, and such transferee shall
be deemed to have no interest whatsoever in such Securities.
(4) After the effectiveness of a Registration Statement
with respect to any Securities, all requirements pertaining to legends
on the Securities will cease to apply, except for the requirements
pertaining to the minimum transfer requirements of $100,000, and
beneficial interests in a Security in global form without legends will
be available to transferees of such Securities, upon exchange of the
transferring holder's Definitive Security or directions to transfer
such holder's beneficial interest in the Global Security as the case
may be. No such transfer or exchange of a Definitive Security or of
an interest in the Global Security shall be effective unless the
transferor delivers to the Trust a certificate in the form
substantially similar to that attached hereto as the form of
"Assignment" in Exhibit B.
(b) General Provisions Relating to Transfers and Exchanges. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Definitive Securities and Global Securities at
the Trustee's request. All Definitive Securities and Global Securities issued
upon any registration of transfer or exchange of Definitive Securities or
Global Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Definitive Securities or Global Securities surrendered upon such registration
of transfer or exchange.
No service charge shall be made to a holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and interest on such Securities, and neither the Trustee, any agent nor
the Company shall be affected by notice to the contrary.
Each holder of a Security agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange
or assignment of such holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Security (including any transfers between or among
Depositary participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
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(c) Exchange of Series A Securities for Series B Securities. The
Series A Securities may be exchanged for Series B Securities pursuant to the
terms of the Exchange Offer. The Trustee shall make the exchange as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
(1) upon issuance of the Series B Securities, the
transactions contemplated by the Exchange Offer have been consummated;
and
(2) the principal amount of Series A Securities properly
tendered in the Exchange Offer that are represented by a Global
Security and the principal amount of Series A Securities properly
tendered in the Exchange Offer that are represented by Definitive
Securities, the name of each holder of such Definitive Securities, the
principal amount properly tendered in the Exchange Offer by each such
holder and the name and address to which Definitive Securities for
Series B Securities shall be registered and sent for each such holder.
The Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series B Securities have
been registered under Section 5 of the Securities Act and the Indenture has
been qualified under the Trust Indenture Act of 1939 and (y) with respect to
the matters set forth in Section 3(m) of the Registration Rights Agreement and
(iii) a Company Order, shall authenticate (A) a Global Security for Series B
Securities in aggregate principal amount equal to the aggregate principal
amount of Series A Securities represented by a Global Security indicated in
such Officers' Certificate as having been properly tendered and (B) Definitive
Securities representing Series B Securities registered in the names of, and in
the principal amounts indicated in, such Officers' Certificate.
If the principal amount of the Global Security for the Series
B Securities is less than the principal amount of the Global Security for the
Series A Securities, the Trustee shall make an endorsement on such Global
Security for Series A Securities indicating a reduction in the principal amount
represented thereby.
The Trustee shall deliver such Definitive Securities for
Series B Securities to the holders thereof as indicated in such Officers'
Certificate.
SECTION 2.08. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's requirements
for replacements of Securities are met. An indemnity bond must be supplied by
the holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any agent thereof or any authenticating agent
from any loss that any of them may suffer if a
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<PAGE> 21
Security is replaced. The Company or the Trustee may charge for its expenses
in replacing a Security.
Every replacement Security is an obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
SECTION 2.09. Temporary Securities.
Pending the preparation of Definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company shall cause Definitive
Securities to be prepared without unreasonable delay. The Definitive
Securities shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange, all as determined by the
officers executing such Definitive Securities. After the preparation of
Definitive Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at the office
or agency maintained by the Company for such purpose pursuant to Section 3.02
hereof, without charge to the holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in exchange therefor the
same aggregate principal amount of Definitive Securities of authorized
denominations. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Securities.
SECTION 2.10. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall retain or destroy cancelled Securities in accordance
with its normal practices (subject to the record retention requirement of the
Exchange Act) unless the Company directs them to be returned to it. The Company
may not issue new Securities to replace Securities that have been redeemed or
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the holder on the
relevant regular record date by virtue of having been such holder; and
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such Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date
and shall be no longer payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Securityholders; provided that any such
notice may state that no representation is made as to correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
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ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the holders of the
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on the Securities at the place,
at the respective times and in the manner provided herein. Except as provided
in Section 2.03, each installment of interest on the Security may be paid by
mailing checks for such interest payable to the order of the holder of Security
entitled thereto as they appear in the Security Register. The Company further
covenants to pay any and all amounts, including, without limitation, Liquidated
Damages, if any, on the dates and in the manner required under the Registration
Rights Agreement.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Securities may be presented for payment, an office or agency where
the Securities may be presented for registration of transfer and for exchange
as in this Indenture provided and an office or agency where notices and demands
to or upon the Company in respect of the Securities or of this Indenture may be
served. The Company will give to the Trustee written notice of the location of
any such office or agency and of any change of location thereof. Until
otherwise designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes shall be the
Principal Office of the Trustee. In case the Company shall fail to maintain
any such office or agency in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Principal Office of the Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Securities may be presented for
payment, registration of transfer and for exchange in the manner provided in
this Indenture, and the Company may from time to time rescind such designation,
as the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give
to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
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SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Securities, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provision of this Section 3.04,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, or interest
on the Securities (whether such sums have been paid to it by the
Company or by any other obligor on the Securities) in trust for the
benefit of the holders of the Securities;
(2) that it will give the Trustee prompt written notice
of any failure by the Company (or by any other obligor on the
Securities) to make any payment of the principal of and premium or
interest on the Securities when the same shall be due and payable; and
(3) that it will at any time during the continuance of
any such failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by it as such paying
agent.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of and premium, if any, or interest on
the Securities, set aside, segregate and hold in trust for the benefit of the
holders of the Securities a sum sufficient to pay such principal, premium or
interest so becoming due and will notify the Trustee of any failure to take
such action and of any failure by the Company (or by any other obligor under
the Securities) to make any payment of the principal of and premium, if any, or
interest on the Securities when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Securities hereunder, or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for such
Securities by the Trustee or any paying agent hereunder, as required by this
Section 3.04, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 3.04 is subject
to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after
the end of each fiscal year in each year, commencing with the first fiscal year
ending after the date hereof, so long as Securities are outstanding hereunder,
an Officers' Certificate, one of the signers of which shall be the principal
executive, principal financial or principal accounting officer of the Company
stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any default
(without regard to notice requirements or grace
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<PAGE> 25
periods) by the Company in the performance of any covenants contained herein,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature
thereof.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or Default and the action which the
Company proposes to take with respect thereto.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions of
Article X hereof are complied with.
SECTION 3.07. Existence.
Subject to the provisions of Article X hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and that of each Principal Subsidiary Bank and
the rights (charter and statutory) and franchises of the Company and each
Principal Subsidiary Bank; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Principal Subsidiary Banks and
that the loss thereof is not disadvantageous in any material respect to the
holders. The Company will remain principally engaged in the financial services
business.
SECTION 3.08. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the holders.
SECTION 3.09. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or
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<PAGE> 26
any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 3.10. Limitation Upon Disposition of Stock or Assets of the
Bank.
Subject to the provisions of Article X hereof, the Company will not,
while any of the Securities remain outstanding, sell, assign, transfer, grant a
security interest in or otherwise dispose of any shares of, securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock (other than directors' qualifying shares) of any
Principal Subsidiary Bank, nor will it permit any Principal Subsidiary Bank to
issue (except to the Company) any shares of, or securities convertible into, or
options, warrants or rights to subscribe for or purchase, shares of, Voting
Stock of any Principal Subsidiary Bank except for sales, assignments,
transfers, grants of security interest or other dispositions which: (i) are for
fair market value on the date thereof, as determined by the Board of Directors
of the Company (which determination shall be conclusive) and evidenced by a
duly adopted resolution thereof (provided, that if such consideration includes
securities of any Person, such Person would not be an Affiliate of the Company
immediately after the consummation of such transaction), and after giving
effect to such disposition and to any possible dilution (and assuming, for
purposes of this clause (i), that all such convertible securities have been
fully converted and all such options, warrants or rights have been fully
exercised), the Company will own at least 80% of the Voting Stock of such
Principal Subsidiary Bank then issued and outstanding free and clear of any
security interest; (ii) are made in compliance with an order of a court or
regulatory authority of competent jurisdiction, a condition imposed by any such
court or authority permitting the acquisition by the Company, directly or
indirectly, of any other bank or entity the activities of which are legally
permissible for a bank holding company or a subsidiary thereof to engage in, or
an undertaking made to such authority in connection with such an acquisition;
(iii) are made where such Principal Subsidiary Bank, having obtained any
necessary regulatory approvals, unconditionally guarantees payment when due of
the principal of and interest on the Securities; or (iv) are made to the
Company or any wholly-owned Subsidiary if such wholly-owned Subsidiary by
supplemental indenture agrees to be bound by this covenant as if it were the
Company and the Company by supplemental indenture agrees to maintain such
wholly-owned Subsidiary as a wholly-owned Subsidiary. Notwithstanding the
foregoing, any Principal Subsidiary Bank may be merged into or consolidated
with another banking institution organized under the laws of the United States,
any State thereof or the District of Columbia, if after giving effect to such
merger or consolidation the Company or any wholly-owned Subsidiary owns at
least 80% of the Voting Stock of such other banking institution then issued and
outstanding free and clear of any security interest and if, immediately after
giving effect thereto and treating any such resulting banking institution
thereafter as such Principal Subsidiary Bank and as a Subsidiary for purposes
of this Indenture, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have happened
and be continuing.
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<PAGE> 27
SECTION 3.11. Limitation on Funded Indebtedness and Indebtedness.
The Company will not, and will not cause or permit any Subsidiary to
create, assume, guarantee, incur or in any manner become, directly or
indirectly liable in respect of any:
(a) Funded Indebtedness unless, after giving effect thereto,
Funded Indebtedness shall not exceed 50% of Consolidated Net Worth; and
(b) Indebtedness unless, after giving effect thereto, Indebtedness
shall not exceed 55% of Consolidated Net Worth.
SECTION 3.12. Consolidated Tangible Equity Capital.
The Company will not at any time permit Consolidated Tangible Equity
to be less than $90,000,000.
SECTION 3.13. Restrictions as to Dividends and Certain Other
Payments.
While any of the Securities remain outstanding, the Company will not,
and will not permit any Subsidiary to, declare or pay any dividend or make any
other distribution on its capital stock (other than on account of capital stock
of a Subsidiary owned legally and beneficially by the Company or a wholly-owned
Subsidiary) or to its respective stockholders (other than dividends or
distributions payable in its capital stock) or purchase, redeem or otherwise
acquire for value (except pursuant to a bona fide pledge or employee benefit
plan) any of its capital stock (other than on account of capital stock of a
Subsidiary owned legally and beneficially by the Company or a Subsidiary)
(each, a "Restricted Payment") unless: (i) immediately before, and after giving
effect to such Restricted Payment, the aggregate amount of all Restricted
Payments declared or made after March 31, 1997 would not exceed the sum of (a)
$10,000,000 plus (b) 75% (or 100% in the case of a deficit) of Consolidated Net
Income for the period commencing March 31, 1997 and ending on and including the
date such Restricted Payment is declared or made (plus 100% of the proceeds of
issuances of equity securities after March 31, 1997); (ii) at the time of and
immediately before, such declaration is made and after giving effect to, such
Restricted Payment, no Default or Event of Default exists or would exist as a
result of such Restricted Payment; and (iii) no Default or Event of Default
shall have occurred within 365 days of the declaration of such Restricted
Payment.
SECTION 3.14. Capital Adequacy.
The Company shall not allow the Bank to be classified as other than
"well capitalized" as defined by 12 C.F.R. Section 565.4 (or its equivalent as
such regulation may be amended from time to time).
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SECTION 3.15. Limitation on Incurrence of Indebtedness by
Subsidiaries.
Any Indebtedness incurred by any Subsidiary subsequent to the issuance
of the Securities shall not include any covenant which would restrict the
payment of dividends to the Company.
SECTION 3.16. Payment of Expenses.
In connection with the offering, sale and issuance of the Securities,
the Company shall pay all costs and expenses relating to the offering, sale and
issuance of the Securities, including commissions to the Initial Purchaser
payable pursuant to the Purchase Agreement, fees and expenses in connection
with any Exchange Offer, filing of a shelf registration statement or other
action to be taken pursuant to the Registration Rights Agreement and
compensation of the Trustee in accordance with the provisions of Section 6.06.
SECTION 3.17. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of
the Trustee, unless otherwise stated, the Company shall pay to the Trustee all
amounts accrued and owing to the date of such termination, removal or
resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:
(a) on a semi-annual basis on each regular record date for the
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders as of such record date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, except that, no such lists need be furnished so long as
the Trustee is in possession thereof by reason of its acting as Security
registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of the Securities (1) contained in the most recent list furnished to it
as provided in Section 4.01 or (2) received by it in the capacity of
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<PAGE> 29
Securities registrar (if so acting) hereunder. The Trustee may destroy any
list furnished to it as provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Securities or with holders of all Securities with respect to their rights
under this Indenture and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within 5 Business Days after the receipt of such application, at its election,
either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number
of holders of all Securities, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section 4.02, and as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02 a copy of the form of proxy
or other communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the holders of
Securities of such series or all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with the provisions of subsection (b) of this
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<PAGE> 30
Section 4.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 4.03. Reports by Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the date on which the Company is required to file the same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as said Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by said Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders appear upon
the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to
be filed by the Company pursuant to subsections (a) and (b) of this Section
4.03 as may be required by rules and regulations prescribed from time to time
by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the Securities
to qualify for an exemption under Rule 144A under the Securities Act, the
Company shall, upon request, provide the information required by clause (d)(4)
thereunder to each Securityholder and to each beneficial owner and prospective
purchaser of Securities identified by each Securityholder of Restricted
Securities, unless such information is furnished to the Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
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<PAGE> 31
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act of 1939 at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act of 1939, the Trustee shall, within sixty days after each May 15
following the date of this Indenture, commencing May 15, 1998, deliver to
Securityholders, in accordance with Section 313(c) of the Trust Indenture Act
of 1939, a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a) and if required by Section 313(b) of the
Trust Indenture Act of 1939, the Trustee shall within ninety days after each
May 15 following the date if this Indenture, commencing May 15, 1998 deliver to
Securityholders a brief report dated as of such May 15 which complies with the
provisions of such Section 313(b).
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission and
with the Company. The Company will promptly notify the Trustee when the
Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall constitute an
Event of Default hereunder (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) Default in the payment of any interest upon any Security when
it becomes due and payable, and continuance of such default for a period of 30
days; or
(b) Default in the payment of all or any part of the principal of
(or premium, if any, on) any Security as and when the same shall become due and
payable either at maturity, by acceleration of maturity or otherwise; or
(c) Default in any material respect by the performance, or breach,
of any covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the holders of at least 25% in aggregate principal amount of
the Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
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<PAGE> 32
(d) A default under any bond, debenture, note or other evidence of
Indebtedness for Money Borrowed by the Company or any Principal Subsidiary Bank
having an aggregate principal amount outstanding of in excess of $2,000,000, or
under any mortgage, indenture or instrument (including this Indenture) under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for Money Borrowed by the Company or any Principal Subsidiary Bank
having an aggregate principal amount outstanding of in excess of $2,000,000,
whether such indebtedness now exists or shall hereafter be created, which
default (i) shall constitute a failure to pay any portion of the principal of
such indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or (ii) shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without, in the case of
clause (i), such indebtedness having been discharged or without, in the case of
clause (ii), such indebtedness having been discharged or such acceleration
having been rescinded or annulled, in each such case within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Outstanding Securities a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled, as the case may be, and stating that such notice is a "Notice of
Default" hereunder, unless in either case (i) or (ii) such default is contested
in good faith by appropriate proceedings; provided, however, that, subject to
the provisions of Sections 6.01 and 6.02 hereof, the Trustee shall not be
deemed to have knowledge of such default unless either (i) a Responsible
Officer of the Trustee shall have actual knowledge of such default or (ii) the
Trustee shall have received written notice thereof from the Company, from any
holder, from the holder of any such indebtedness or from the trustee under any
such mortgage, indenture or other instrument; or
(e) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company or any Principal
Subsidiary Bank in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or any Principal Subsidiary Bank or for any
substantial part of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(f) The Company or any Principal Subsidiary Bank shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Company or any
Principal Subsidiary Bank or of any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case, except in the
case of an Event of Default under subsections (e) and (f) of this Section 5.01,
the Trustee or the holders of not less than 25% in aggregate principal
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amount of the Securities then outstanding may declare the principal amount of
all Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the holders of the Outstanding
Securities), and upon any such declaration the same shall become immediately
due and payable. If any Event of Default specified in clause (e) or (f) above
occurs, the principal amount of all Securities then outstanding shall
automatically become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any holder.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Securities shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, (i)
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
(A) all matured installments of interest upon all the Securities and the
principal of and premium, if any, on any and all Securities which shall have
become due otherwise than by acceleration (with interest upon such principal
and premium, if any, and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest specified in the Securities to the date of
such payment or deposit) and (B) such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and (ii) any
and all Events of Default under the Indenture, other than the non-payment of
the principal of the Securities which shall have become due solely by such
declaration of acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then, in every such case, the holders of a
majority in aggregate principal amount of the Securities then outstanding, by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned,
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the
Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Securities as and when
the same shall become due and payable, and such default shall have continued
for a period of 30 days, or (b) in case default shall be made in the payment of
the principal of or premium, if any, on any of the Securities as and when the
same shall have become due and payable, whether at maturity of the Securities
or by declaration or otherwise, then, upon demand of the Trustee, the Company
will pay to the Trustee,
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for the benefit of the holders of the Securities, the whole amount that then
shall have become due and payable on all such Securities for principal and
premium, if any, or interest, or both, as the case may be, with interest upon
the overdue principal and premium, if any, and (to the extent that payment of
such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on the Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities under
Title 11, United States Code, or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the Securities
and, in case of any judicial proceedings, to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in such
judicial proceedings relative to the Company or any other obligor on the
Securities, or to the creditors or property of the Company or such other
obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and
their respective
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agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the holders of
the Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Securities, and it shall not be necessary to make any holders of
the Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Securities in respect of which moneys
have been collected, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection
applicable to the Securities and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become due and be
unpaid, to the payment of the amounts then due and unpaid upon Securities for
principal of (and premium, if any) and interest on the Securities, in respect
of which or for the benefit of which money has been collected, ratably, without
preference or priority of any kind, according to the amounts due on such
Securities for principal (and premium, if any) and interest, respectively; and
Third: To the Company.
SECTION 5.04. Proceedings by Securityholders.
Except as contemplated by this Section 5.04, no holder of any Security
shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or
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proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities specifying such Event of Default, as hereinbefore
provided, and unless also the holders of not less than 25% in aggregate
principal amount of the Securities then outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, it being understood
and intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or more
holders of Securities shall have any right in any manner whatever by virtue of
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Securities, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Security to receive payment of the principal of
(premium, if any) and interest on such Security, on or after the same shall
have become due and payable, or to institute suit for the enforcement of any
such payment, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security with every
other such taker and holder and the Trustee, that no one or more holders of
Securities shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities. For the protection
and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities and is
continuing, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding
in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
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SECTION 5.06. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Trustee or to
the Securityholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any other powers and remedies available to the Trustee or
the holders of the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Securities, and no delay
or omission of the Trustee or of any holder of any of the Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.04, every power and remedy given by this
Article V or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
however, that (subject to the provisions of Section 6.01) the Trustee shall
have the right to decline to follow any such direction if the Trustee shall
determine that the action so directed would be unjustly prejudicial to the
holders not taking part in such direction or if the Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so directed
would involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Securities, the holders of a majority in
aggregate principal amount of the Securities at the time outstanding may on
behalf of the holders of all of the Securities waive any past default or Event
of Default and its consequences except a default (a) in the payment of
principal of or premium, if any, or interest on any of the Securities or (b) in
respect of covenants or provisions hereof which cannot be modified or amended
without the consent of the holder of each Security affected; provided however,
that if the consent of the holder of each outstanding Security is required,
such waiver shall not be effective until each holder of the Securities shall
have consented to such waiver. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Securities shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 5.07, said default or Event of Default
shall for all purposes of the Securities and this Indenture be deemed to have
been cured and to be not continuing.
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SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default
with respect to the Securities mail to all Securityholders, as the names and
addresses of such holders appear upon the Security Register, notice of all
defaults actually known to the Trustee, unless such defaults shall have been
cured before the giving of such notice (the term "defaults" for the purpose of
this Section 5.08 being hereby defined to be the events specified in clauses
(a), (b), (c), (d), (e) and (f) of Section 5.01, not including periods of
grace, if any, provided for therein, and irrespective of the giving of written
notice specified in clause (c) of Section 5.01); and provided that, except in
the case of default in the payment of the principal of or premium, if any, or
interest on any of the Securities, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders; and provided further, that in the case of any
default of the character specified in Section 5.01(c) no such notice to
Securityholders shall be given until at least 60 days after the occurrence
thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in aggregate principal
amount of the Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security against the Company on or after
the same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured
or waived) the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and
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use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) Prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or officers, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(c) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith, in accordance with the
direction of the Securityholders pursuant to Section 5.07, relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
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(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, note,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein may be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) The Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (that has not been cured or waived), to
exercise such of the rights and powers vested in it by this Indenture, and to
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, coupon or other paper or document, unless requested in writing to do
so by the holders of a majority in aggregate principal amount of the
Outstanding Securities; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding;
(g) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
(including any Authenticating Agent),or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed by it with due care;
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(h) The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(i) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Principal Office of the Trustee, and
such notice references the Securities and this Indenture.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
and the Authenticating Agent shall not be accountable for the use or
application by the Company of any Securities or the proceeds of any Securities
authenticated and delivered by the Trustee or the Authenticating Agent in
conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon
the written order of the Company, signed by the Chairman of the Board of
Directors, the President or a Vice President or the Treasurer or an Assistant
Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as issuer of Securities under this Indenture, covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Company and the Trustee (which shall not be limited by any
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provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the Trustee) incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises. The obligations of the Company under this Section 6.06 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(e) or Section 5.01(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in
the administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or omitting any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate and an opinion
of Counsel of the Company, both of which meet the requirements if Section
513(e) of the Trust Indenture Act of 1939, delivered to the Trustee, and such
certificate and opinion, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act of 1939, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939.
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SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
or territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 6.09 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign by giving written notice of such resignation to the
Company and by mailing notice thereof to the holders of the Securities at their
addresses as they shall appear on the Security register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
or trustees by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any Securityholder who has been a bona fide holder of a Security for at
least six months may, subject to the provisions of Section 5.09, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of Section 6.08 after written request therefor by the Company or by
any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.09 and shall fail to resign after
written request therefor by the Company or by any such Securityholder,
or
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(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 5.09, any
Securityholder who has been a bona fide holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within 10 days after such nomination the Company objects thereto
or if no successor trustee shall have been so appointed and shall have accepted
appointment within 30 days after such removal, in which case the Trustee so
removed or any Securityholder, upon the terms and conditions and otherwise as
in subsection (a) of this Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor
trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of
the trustee so ceasing to act and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring trustee
thereunder. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
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No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they shall
appear on the Security register. If the Company fails to mail such notice
within 10 days after the acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of
the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor trustee; and in all such cases such certificates shall have the
full force which the Securities or this Indenture elsewhere provides that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act of 1939, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act of 1939. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act of 1939 to the
extent included therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities
issued upon exchange or transfer thereof as fully to all intents and purposes
as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Securities; provided, that the Trustee shall have no
liability to the
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Company for any acts or omissions of the Authenticating Agent with respect to
the authentication and delivery of Securities. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $5,000,000 and being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such authority, then for
the purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any Authenticating Agent shall cease to be eligible under this
Section 6.14, the Trustee may, and upon the request of the Company shall,
promptly appoint a successor Authenticating Agent eligible under this Section
6.14, shall give written notice of such appointment to the Company and shall
mail notice of such appointment to all Securityholders as the names and
addresses of such holders appear on the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein.
The Company, as borrower, agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Trustee.
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ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in person or by
agent or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such Securityholders duly
called and held in accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of Outstanding Securities
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Securities shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security registrar. The Trustee may
require such additional proof of any matter referred to in this Section as it
shall deem necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
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SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and any Security registrar may deem the person in whose name
such Security shall be registered upon the Security Register to be, and may
treat him as, the absolute owner of such Security (whether or not such Security
shall be overdue) for the purpose of receiving payment of or on account of the
principal of and premium, if any, and (subject to Section 2.06) interest on
such Security and for all other purposes; and neither the Company nor the
Trustee nor any Authenticating Agent nor any paying agent nor any transfer
agent nor any Security registrar shall be affected by any notice to the
contrary. All such payments so made to any holder for the time being or upon
his order shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only Securities
which the Trustee actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 7.04 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Securities and that the pledgee is not the Company or any such other obligor or
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor),
subject to Section 7.01, the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented to such
action may, by filing written notice with the Trustee at its principal office
and upon proof of holding as provided in Section 7.02, revoke such action so
far as concerns such Security (or so far as concerns the principal amount
represented by any exchanged or substituted Security). Except as aforesaid any
such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and
of any Security issued in exchange or substitution
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therefor, irrespective of whether or not any notation in regard thereto is made
upon such Security or any Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time
to time pursuant to the provisions of this Article VIII for any of the
following purposes:
(a) To give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article V;
(b) To remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VI;
(c) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d) To take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of such
Securities under any other provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 8.01, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to holders of Securities at their
addresses as they shall appear on the Securities Register. Such notice shall
be mailed not less than 20 nor more than 180 days prior to the date fixed for
the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board
of Directors, or the holders of at least 10% in aggregate principal amount of
the Securities then outstanding, shall have requested the Trustee to call a
meeting of Securityholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and
the place in said Borough of Manhattan for
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such meeting and may call such meeting to take any action authorized in Section
8.01, by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a person
shall (a) be a holder of one or more Securities or (b) a person appointed by an
instrument in writing as proxy by a holder of one or more Securities. The only
persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other
than by virtue of Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other Securityholders.
Any meeting of Securityholders duly called pursuant to the provisions of
Section 8.02 or 8.03 may be adjourned from time to time by a majority of those
present, and the meeting may be held as so adjourned without further notice.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum for a meeting of holders of
Securities; provided, however, that if any action is to be taken at such
meeting with respect to a consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the holders of
not less than a specified percentage in principal amount of the Outstanding
Securities, the Persons holding or representing such specified percentage in
principal amount of the Outstanding Securities will constitute a quorum. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of holders of
Securities, be dissolved.
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In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 8.02, except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities which shall constitute a quorum.
Except as limited by the first proviso to the first paragraph of
Section 9.02, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the holders of a majority in principal amount of the
Outstanding Securities; provided, however, that, except as limited by the first
proviso to the first paragraph of Section 9.02, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action which this Indenture expressly provides may be given by the holders of
not less than a specified percentage in principal amount of the Outstanding
Securities may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of
the holders of not less than such specified percentage in principal amount of
the Outstanding Securities.
Any resolution passed or decision taken at any meeting of holders of
Securities duly held in accordance with this Section shall be binding on all
the holders of Securities whether or not present or represented at the meeting.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 8.02. The record shall show the serial numbers of
the Securities voting in favor of or against any resolution. The record shall
be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. The holders of the
Series A Securities and the Series B Securities shall vote for all purposes as
a single class.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company and the Trustee may from time to time and at any time
amend the Indenture, without the consent of the Securityholders, for one or
more of the following purposes:
(a) To evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article X hereof;
(b) To add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Securityholders as the
Board of Directors and the Trustee shall consider to be for the protection of
the Securityholders, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement of all
or any of the remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant, restriction
or condition such amendment may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default;
(c) To provide for the issuance under this Indenture of Securities
in coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(d) To cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to matters
or questions arising under this Indenture; provided that any such action shall
not materially adversely affect the interests of the holders of the Securities;
(e) To evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities;
(f) To qualify or maintain qualification of this Indenture under
the Trust Indenture Act of 1939; or
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(g) To make any change that does not adversely affect the rights
of any Securityholder in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to the Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of 66-2/3% in aggregate principal amount of the Securities at the time
outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time amend the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the holders of the Securities; provided, however, that no such
amendment shall without the consent of the holders of each Security then
outstanding and affected thereby (i) extend the Maturity Date of any Security,
or reduce the rate or extend the time of payment of interest thereon , or
reduce the principal amount thereof, or reduce any amount payable on redemption
thereof, or make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that provided in the Securities, or
impair or affect the right of any Securityholder to institute suit for payment
thereof, or (ii) reduce the aforesaid percentage of Securities the holders of
which are required to consent to any such amendment to the Indenture, provided,
however, that if the consent of the holder of each outstanding Security is
required, such amendment shall not be effective until each holder of the
Securities shall have consented to such amendment.
Upon the request of the Company accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any supplemental indenture affecting such
amendment, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders as their names and addresses appear upon
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the Security Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act of 1939; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act of 1939. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such series pursuant to the provisions of this
Article IX may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the Company, authenticated by the Trustee or the Authenticating Agent and
delivered in exchange for the Securities then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX.
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ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company, as the case may be), or
successive consolidations or mergers in which the Company or its successor or
successors, as the case may be, shall be a party or parties, or shall prevent
any sale, conveyance, transfer or lease of the property of the Company, or its
successor or successors as the case may be, as an entirety, or substantially as
an entirety, to any other Person (whether or not affiliated with the Company,
or its successor or successors, as the case may be) authorized to acquire and
operate the same; provided, that (a) the Company is the surviving Person, or
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, conveyance, transfer or lease of
property is made is a Person organized and existing under the laws of the
United States or any State thereof or the District of Columbia, (b) upon any
such consolidation, merger, sale, conveyance, transfer or lease, 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 this Indenture to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act of 1939, as
then in effect) satisfactory in form to the Trustee executed and delivered to
the Trustee by the Person formed by such consolidation, or into which the
Company shall have been merged, or by the Person which shall have acquired such
property, as the case may be, (c) after giving effect to such consolidation,
merger, sale, conveyance, transfer or lease, no Default or Event of Default
shall have occurred and be continuing, and (d) to the extent the Securities are
rated by a nationally recognized statistical rating organization, such
consolidation, merger, sale, conveyance, transfer or lease does not cause the
Securities to be downgraded by a nationally recognized statistical rating
organization which theretofore has rated such Securities.
SECTION 10.02. Successor Corporation to be Substituted for Company.
In case of any such consolidation, merger, conveyance or transfer and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and premium, if any, and
interest on all of the Securities and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon the
Securities. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of First Palm Beach Bancorp, Inc.,
any or all of the Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and limitations in this
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Indenture prescribed, the Trustee or the Authenticating Agent shall
authenticate and deliver any Securities which previously shall have been signed
and delivered by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Indentures had been issued at
the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X complies with the provisions of this
Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.08) and not theretofore cancelled, or (b) all the
Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay on the Maturity Date (other than any Securities which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.08) not theretofore cancelled or delivered to the Trustee
for cancellation, including principal and premium, if any, and interest due or
to become due to the Maturity Date, but excluding, however, the amount of any
moneys for the payment of principal of or premium, if any, or interest on the
Securities (1) theretofore repaid to the Company in accordance with the
provisions of Section 11.04, or (2) paid to any State or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.02, 2.07, 2.08, 3.01, 3.02,
3.04, 6.06, 6.10 and 11.04 hereof, which shall survive until such Securities
shall mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04 shall
survive, and the Trustee, on demand of the Company accompanied by any Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Company, however, hereby agreeing to reimburse
the Trustee for any costs or
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expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the payment of which
such moneys or U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.05 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the holders of Outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Trustee) shall, upon
written demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of or premium, if any, or interest on Securities
and not applied but remaining unclaimed by the holders of Securities for two
years after the date upon which the principal of or premium, if any, or
interest on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on
written demand; and the holder of any of the Securities shall thereafter look
only to the Company for any payment which such holder may be entitled to
collect and all liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Company shall be deemed to have been Discharged (as defined below)
from its obligations with respect to the Securities on the 91st day after the
applicable conditions set forth below have been satisfied:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as defined below) as
trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Securities (i) money in an
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amount, or (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (iii) a combination of (i) and (ii), sufficient, in the opinion
(with respect to (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee and the Defeasance Agent, if any, to pay and discharge each
installment of principal of and interest and premium, if any, on the
Outstanding Securities on the dates such installments of principal, interest or
premium are due;
(b) If the Securities are then listed on any national securities
exchange, the Company shall have delivered to the Trustee and the Defeasance
Agent, if any, an Opinion of Counsel to the effect that the exercise of the
option under this Section 11.05 would not cause such Securities to be delisted
from such exchange;
(c) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(d) The Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that holders of
the Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of the exercise of the option under
this Section 11.05 and will be subject to United States federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such option had not been exercised, and such opinion shall be based
on a statute so providing or be accompanied by a private letter ruling to that
effect received from the United States Internal Revenue Service or a revenue
ruling pertaining to a comparable form of transaction to that effect published
by the United States Internal Revenue Service; and
(e) The Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Officers' Certificate and an Opinion of Counsel
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this indenture have been complied with.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund described in clause
(1) above, payment of the principal of and the interest and premium, if any, on
the Securities when such payments are due; (3) the Company's obligations with
respect to the Securities under Sections 2.07, 2.08, 5.02 and 11.04; and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations
of the Trustee necessary to enable the Trustee to act hereunder. In the event
such a Defeasance Agent is appointed pursuant to this Section, the following
conditions shall apply:
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(a) The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth such Defeasance
Agent's rights and responsibilities;
(b) The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U. S. Government Obligations
to meet the applicable conditions set forth in this Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor Person to the Company, either
directly or through the Company or any successor Person to the Company, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the
Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
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SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company, as the case may be, and
as to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee for the
purpose) to the Company at 450 South Australian Avenue, West Palm Beach,
Florida 33401, Attention: R. Randy Guemple, Chief Financial Officer and Chief
Operating Officer. Any notice, direction, request or demand by any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the office of
the Trustee, 101 Barclay Street, 21 West, New York, New York 10286, Attention:
Corporate Trustee Administration (unless another address is provided by the
Trustee to the Company for such purpose). Any notice or communication to a
Securityholder shall be mailed by first class mail to his or her address shown
on the register kept by the Security Registrar.
SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
conflicts of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that in the opinion of
the signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (except certificates delivered pursuant
to Section 3.05) shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
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(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of or premium, if
any, or interest on the Securities will not be a Business Day, the payment of
such principal of or premium, if any, or interest on the Securities need not be
made on such date but may be made on the next succeeding Business Day (and
without any interest or other payment in respect of such delay), except that if
such next succeeding Business Day falls in the next succeeding calendar year,
then such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date of payment and
no interest shall accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act of 1939 to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such imposed duties shall
control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Securities,
but this Indenture and the Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject
to the foregoing, the Indenture is binding upon and inures to the benefit of
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the parties thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
The Bank of New York hereby accepts the trusts in this indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as of
the day and year first above written.
FIRST PALM BEACH BANCORP, INC.
By: /s/ R. RANDY GUEMPLE
-------------------------------------
Name: R. Randy Guemple
--------------------------------
Title: EVP & COO
-------------------------------
THE BANK OF NEW YORK,
as Trustee
By: /s/ PAUL J. SCHMALZIE
-------------------------------------
Name: Paul J. Schmalzie
--------------------------------
Title: Assistant Vice President
-------------------------------
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<PAGE> 63
EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED
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<PAGE> 64
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY, AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE REVERSE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEREE TO
THE COMPANY. IN ADDITION, SUCH HOLDER BY ITS ACCEPTANCE HEREOF AGREES TO BE
BOUND BY THE PROVISIONS OF THE "REGISTRATION RIGHTS AGREEMENT" (AS DEFINED IN
THE INDENTURE). SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
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<PAGE> 65
No. __ CUSIP No. ________
FIRST PALM BEACH BANCORP, INC.
SERIES ___ 10.35% SENIOR DEBENTURE DUE 2002
First Palm Beach Bancorp, Inc., a Delaware corporation (the "Company,"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________ or
registered assigns, the principal sum of $_______________ on June 30, 2002
(the "Maturity Date"), unless previously redeemed, and to pay interest on the
outstanding principal amount hereof from June 30, 1997, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, semi-annually (subject to deferral
as set forth herein) in arrears on June 30 and December 31 of each year,
commencing December 31, 1997, at the rate of 10.35% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded semi-annually.
The amount of interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year of twelve 30- day months and, for any period
less than a full calendar month, the number of days elapsed in such month. In
the event that any date on which the principal of (or premium, if any) or
interest on this Security is payable is not a Business Day, then the payment
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that if such next succeeding Business Day falls in the next calendar
year, then such payment shall be made on the immediately preceding Business Day
in each case with the same force and effect as if made on such date. Pursuant
to the Registration Rights Agreement, in certain limited circumstances the
Company will be required to pay liquidated damages (as set forth in the
Registration Rights Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of
business on the regular record date for such interest installment, which shall
be the fifteenth day of the month in which the relevant interest payment date
falls. Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the holders on such regular record date
and may be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the holders of Securities not less
than 10 days prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
The principal of (and premium, if any) and interest on this Security
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that, payment of interest may be made at the option of the
Company by (i) check mailed to the holder at such address as shall appear in
the Security Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto, provided that proper written wire transfer
instructions have been received by the relevant record date.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
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<PAGE> 66
IN WITNESS WHEREOF, the Company has executed this certificate.
FIRST PALM BEACH BANCORP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Attest:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
Dated: June 30, 1997
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Authorized Signatory
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<PAGE> 67
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of June 30,
1997 (the "Indenture") , duly executed and delivered between the Company and
The Bank of New York, as Trustee (the "Trustee"), to which Indenture reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Securities.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities (to the
extent such declaration is not automatic upon the occurrence of an Event of
Default as specified in the Indenture) may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of 66-2/3% in aggregate principal
amount of the Securities at the time outstanding, as defined in the Indenture,
to execute supplemental indentures for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of modifying in any manner the rights of the holders of the Securities;
provided, however, that no such supplemental indenture shall, without the
consent of each holder of Securities then outstanding and affected thereby, (i)
extend the Maturity Date of any Securities, or reduce the principal amount
thereof, or reduce any amount payable on prepayment thereof, or reduce the rate
or extend the time of payment of interest thereon, or make the principal of, or
interest or premium on, the Securities payable in any coin or currency other
than U.S. dollars, or impair or affect the right of any holder of Securities to
institute suit for the payment thereof, or (ii) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Securities at the
time outstanding affected thereby, on behalf of all of the holders of the
Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture,
and its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Securities or a default in respect
of any covenant or provision under which the Indenture cannot be modified or
amended without the consent of each holder of Securities then outstanding. Any
such consent or waiver by the holder of this Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Security and of any Security issued
in exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Security at the time and place and at the rate and in the
money herein prescribed.
The Securities are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple of $1,000 above $100,000.
As provided in the Indenture and subject to the transfer restrictions
limitations as may be contained herein and therein from time to time, this
Security is transferable by the holder hereof on the Security Register of the
Company, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the City and State of New York accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee, any authenticating agent, any paying agent,
any transfer agent and the registrar may deem and treat the holder hereof as
the absolute owner hereof (whether or not this Security shall be overdue) for
the purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to the Indenture) interest due hereon
A-5
<PAGE> 68
and for all other purposes, and neither the Company nor the Trustee nor any
authenticating agent nor any paying agent nor any transfer agent nor any
registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Security, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor Person,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
A-6
<PAGE> 69
EXHIBIT B
(FORM OF ASSIGNMENT)
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him _________________________________________________________
Date: _______________
Your Signature:
------------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:
-------------------------
B-1
<PAGE> 1
[ALSTON & BIRD LLP LETTERHEAD]
[FORM OF OPINION]
September __, 1997
FIRST PALM BEACH BANCORP, INC.
450 South Australian Avenue
West Palm Beach, Florida 33401
Re: First Palm Beach Bancorp, Inc.
$35,000,000 Series B 10.35%
Senior Debentures Due 2002
Ladies and Gentlemen:
We have participated in the preparation of a registration statement on
Form S-4 (the "Registration Statement") for filing with the Securities and
Exchange Commission in respect to up to $35,000,000 Series B Senior Debentures
Due 2002 (the "Series B Securities") of First Palm Beach Bancorp, Inc. (the
"Company"), to be issued under the Indenture, dated as of June 30, 1997 (the
"Indenture") between the Company and the Bank of New York as Trustee. The
Series B Securities are to be issued by the Company pursuant to an exchange
offer (the "Exchange Offer") to the holders of $35,000,000 Series A Senior
Securities (the "Series A Securities") of the Company.
The Series A Securities are subject to the registration rights set
forth in the Registration Rights Agreement, dated as of June 30, 1997 (the
"Registration Rights Agreement"), between the Company and Keefe, Bruyette &
Woods, Inc. (the "Initial Purchaser"), which relates to the Exchange Offer.
For purposes of rendering the opinion expressed herein, we have
examined the Company's Certificate of Incorporation and all amendments thereto;
the Company's By-laws and amendments thereto, the Indenture, the Registration
Rights Agreement and such of the Company's corporate records as we have deemed
necessary and material to rendering our own opinion.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic
<PAGE> 2
FIRST PALM BEACH BANCORP, INC.
September __, 1997
Page 2
copies and the authenticity of the originals of such latter documents. In
making our examination of documents executed by parties other than the Company,
we have assumed that such parties had the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity and binding effect
thereof on such parties. As to any facts material to the opinions expressed
herein which we did not independently establish or verify, we have relied upon
oral or written statements and representations of officers and other
representatives of the Company. In addition, we have assumed and have not
verified (i) the accuracy as to factual matters of each document we have
reviewed or (ii) that the Series B Securities will be duly authenticated in
accordance with the terms of the Indenture.
Based upon the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with corporate power
and authority under such laws to own and operate its properties and conduct its
business as described in the Offering Memorandum.
(b) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of regulatory agencies generally as well
as to bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles (regardless of whether considered in a proceeding in equity or at
law) and the availability of equitable remedies.
(c) The Series B Securities have been duly authorized for issuance by
the Company; and the Series B Securities, when executed, authenticated and
delivered in the manner provided for in the Indenture and issued in the
Exchange Offer as contemplated in the Registration Rights Agreement, will be
duly executed and delivered by the Company and will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by the receivership, conservatorship and
supervisory powers of regulatory agencies generally as well as to bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles
(regardless of whether considered in a proceeding in equity or at law) and the
availability of equitable remedies.
<PAGE> 3
FIRST PALM BEACH BANCORP, INC.
September __, 1997
Page 3
We are members of the District of Columbia Bar and the State Bar of
Georgia, and, accordingly, do not purport to be experts on or to be qualified
to express any opinion herein concerning any law other than the laws of the
State of Georgia and the District of Columbia, the General Corporation Law of
the State of Delaware, and the federal laws of the United States to the extent
referred to specifically herein. We note that various of the documents and
matters referred to herein are governed by the laws of the State of New York.
In this regard, we have assumed, with your permission, that such laws are
identical to the laws of the State of Georgia.
We hereby consent to being named as a party rendering a legal opinion
under the caption "Legal Matters" in the Prospectus constituting part of the
Registration Statement and to the filing of this opinion with the Securities
and Exchange Commission.
Very truly yours,
ALSTON & BIRD LLP
<PAGE> 1
EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
Dated June 30, 1997
between
FIRST PALM BEACH BANCORP, INC.
and
KEEFE, BRUYETTE & WOODS, INC.
as Initial Purchaser
<PAGE> 2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of June 30, 1997 between FIRST PALM BEACH BANCORP, INC., a
Delaware chartered savings and loan holding company (the "Company"), and KEEFE,
BRUYETTE & WOODS, INC. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement
dated June 26, 1997 (the "Purchase Agreement"), between the Company and the
Initial Purchaser, which provides for the sale by the Company to the Initial
Purchaser of $35,000,000 aggregate principal amount of the Company's Series A
10.35% Senior Debentures Due 2002 (the "Securities"). In order to induce the
Initial Purchaser to enter into the Purchase Agreement, the Company has agreed
to provide to the Initial Purchaser and its direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
I. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or a
day on which banking institutions in New York, New York, or in West Palm Beach,
Florida, are authorized or required to be closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
<PAGE> 3
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Securities (other than Private Exchange
Securities) for a like principal amount of Exchange Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Securities" shall mean the Series B 10.35% Senior Debentures
Due 2002 containing terms identical to the Securities (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the
Securities or, if no such interest has been paid, from the date of their
original issue, (ii) they will not contain terms with respect to the transfer
restrictions under the Securities Act (other than require minimum transfers
thereof to be in blocks of $100,000 principal amount) and (iii) they will not
provide for any liquidated damages thereon).
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities and
the Exchange Securities dated as of June 30, 1997 between the Company, as
issuer, and The Bank of New York, as trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean the date of original issuance of the
Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage or amount.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(t) hereof.
- 2 -
<PAGE> 4
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
exchanged or disposed of pursuant to such Registration Statement, (ii) such
Securities or Private Exchange Securities, as the case may be, shall have been
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act, or (iii) such Securities or
Private Exchange Securities, as the case may be, shall have ceased to be
outstanding or (iv) with respect to the Securities, such Securities have been
exchanged for Exchange Securities upon consummation of the Exchange Offer and
are thereafter freely tradeable by the holder thereof (other than an affiliate
of the Company).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities) and compliance with the rules of
the NASD, (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing
- 3 -
<PAGE> 5
and distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing, printing
and distributing any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and disbursements of
counsel for the Company and of the independent certified public accountants of
the Company, including the expenses of any "cold comfort" letters required by
or incident to such performance and compliance, (vi) the fees and expenses of
the Trustee, and any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, and (viii) the reasonable
fees and expenses of any special experts retained by the Company in connection
with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof
which covers all of the Registrable Securities or all of the Private Exchange
Securities, as the case may be, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
- 4 -
<PAGE> 6
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by any
applicable law or applicable interpretation of the staff of the SEC, the
Company shall, for the benefit of the Holders, at the Company's cost, use its
best efforts to (i) cause to be filed with the SEC within 150 days after the
Issue Date an Exchange Offer Registration Statement on an appropriate form
under the Securities Act covering the Exchange Offer, (ii) cause such Exchange
Offer Registration Statement to be declared effective under the Securities Act
by the SEC not later than the date which is 180 days after the Issue Date, and
(iii) keep such Exchange Offer Registration Statement effective for not less
than 30 calendar days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the Holders. Upon the effectiveness
of the Exchange Offer Registration Statement, the Company shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
a like principal amount of Exchange Securities (assuming that such Holder is
not an affiliate of the Company within the meaning of Rule 405 under the
Securities Act and is not a broker-dealer tendering Registrable Securities
acquired directly from the Company for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a
period of not less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the
Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by
such Holder in the Exchange Offer will remain outstanding and continue
to accrue interest or accumulate distributions, as the case may be,
but will not retain any rights under this Agreement
- 5 -
<PAGE> 7
(except in the case of the Initial Purchaser and Participating
Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside counsel
that it is not eligible to participate in the Exchange Offer with respect to
the exchange of Securities constituting any portion of an unsold allotment in
the initial distribution, as soon as practicable upon receipt by the Company of
a written request from the Initial Purchaser, the Company shall issue and
deliver to the Initial Purchaser in exchange (the "Private Exchange") for the
Securities held by the Initial Purchaser, a like principal amount of the
Securities of the Company, as applicable, that are identical (except that such
securities may bear a customary legend with respect to restrictions on transfer
pursuant to the Securities Act) to the Exchange Securities (the "Private
Exchange Securities") and which are issued pursuant to the Indenture (which
provides that the Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture (other than require minimum transfers
thereof to be in blocks of $100,000 principal amount or liquidation amount, as
the case may be), and that the Exchange Securities, the Private Exchange
Securities and the Securities will vote and consent together on all matters as
one class and that neither the Exchange Securities, the Private Exchange
Securities nor the Securities will have the right to vote or consent as a
separate class on any matter). The Private Exchange Securities shall be of the
same series as the Exchange Securities and the Company will seek to cause the
CUSIP Service Bureau to issue the same CUSIP Numbers for the Private Exchange
Securities as for the Exchange Securities issued pursuant to the Exchange
Offer.
As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Company shall:
(i) accept for exchange all Securities or portions
thereof tendered and not validly withdrawn pursuant to the Exchange
Offer or the Private Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Securities or portions thereof so accepted for
exchange by the Company; and
(iii) issue, and cause the Trustee to promptly authenticate
and deliver to each Holder, new Exchange Securities or Private
Exchange Securities, as applicable, equal in principal amount to the
principal amount of the Securities as are surrendered by such Holder.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer and interest on each Private Exchange Security issued in the
Private Exchange will accrue from the last date on which interest was paid on
the Security surrendered in exchange therefore or, if no interest has been paid
on such Security, from the Issue Date. To the extent not prohibited by any law
or applicable interpretation of the staff of the SEC, the Company shall use its
best efforts to complete the Exchange Offer as provided above, and shall comply
with the applicable
- 6 -
<PAGE> 8
requirements of the Securities Act, the Exchange Act and other applicable laws
in connection with the Exchange Offer. The Exchange Offer shall not be subject
to any conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the SEC. Each
Holder of Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Securities in the Exchange Offer will be required to
make certain customary representations in connection therewith, including, in
the case of any Holder of Securities, representations that (i) it is not an
affiliate of the Company, (ii) the Exchange Securities to be received by it
were acquired in the ordinary course of its business and (iii) at the time of
the Exchange Offer, it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Securities. The Company shall inform the Initial Purchaser, after consultation
with the Trustee, of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchaser shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
the Registrable Securities (other than Private Exchange Securities) pursuant to
Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company
or the Majority Holders reasonably determine, after conferring with counsel
(which may be in-house counsel), that the Exchange Offer Registration provided
in Section 2(a) above is not available because of any change in law or in
currently prevailing interpretations of the staff of the SEC, (ii) the Company
shall determine in good faith that there is a reasonable likelihood, or that a
material uncertainty exists as to whether, consummation of the Exchange Offer
would result in a material adverse tax consequence to the Company, (iii) the
Exchange Offer Registration Statement is not declared effective within 180 days
of the Issue Date, or (iv) upon the request of the Initial Purchaser with
respect to any Registrable Securities held by it, if the Initial Purchaser is
not permitted, in the reasonable opinion of Brown & Wood LLP, pursuant to
applicable law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are
freely tradeable without restriction under the Securities Act and applicable
blue sky or state securities laws (any of the events specified in (i)-(iv)
being a "Shelf Registration Event" and the date of occurrence thereof, the
"Shelf Registration Event Date"), the Company shall, at its cost, use its best
efforts to cause to be filed as promptly as practicable after such Shelf
Registration Event Date, and, in any event, within 45 days after such Shelf
Registration Event Date (which shall be no earlier than 75 days after the
Closing Time), a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities, and shall use their best efforts
to have such Shelf Registration Statement declared effective by the SEC as soon
as practicable. No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder and furnishes
to the Company in writing, within 15 days after receipt of a request therefor,
such information as the Company may, after conferring with counsel with regard
to information
- 7 -
<PAGE> 9
relating to Holders that would be required by the SEC to be included in such
Shelf Registration Statement or Prospectus included therein, reasonably request
for inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being effected
agrees to furnish to the Company all information with respect to such Holder
necessary to make the information previously furnished to the Company by such
Holder not materially misleading.
The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective for the Rule 144(k) Period
(subject to extension pursuant to the last paragraph of Section 3 hereof) or
for such shorter period which will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding (the
"Effectiveness Period"). The Company shall not permit any securities other
than Registrable Securities to be included in the Shelf Registration. The
Company will, in the event a Shelf Registration Statement is declared
effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each
such Holder when the Shelf Registration has become effective and use its best
efforts to take certain other actions as are required to permit certain
unrestricted resales of the Registrable Securities. The Company further
agrees, if necessary, to supplement or amend the Shelf Registration Statement,
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for
shelf registrations, and the Company agrees to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration
Expenses in connection with any Registration Statement pursuant to Section 2(a)
or 2(b) hereof and will reimburse the Initial Purchaser for the reasonable fees
and disbursements of Brown & Wood LLP, counsel for the Initial Purchaser,
incurred in connection with the Exchange Offer and, if applicable, the Private
Exchange, and either Brown & Wood LLP or any one other counsel designated in
writing by the Majority Holders to act as counsel for the Holders of the
Registrable Securities in connection with a Shelf Registration Statement, which
other counsel shall be reasonably satisfactory to the Company. Except as
provided herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume. The Company will be deemed not to have used its best efforts to cause
the Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case
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<PAGE> 10
may be, to become, or to remain, effective during the requisite period if it
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless such action is required by
applicable law.
(e) Liquidated Damages. In the event that (i) (A)
neither the Exchange Offer Registration Statement nor a Shelf Registration
Statement is filed with the SEC on or prior to the 150th day after the Issue
Date or (B) notwithstanding that the Company has consummated or will consummate
an Exchange Offer, the Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not filed on or prior to the
date required by Section 2(b) hereof, then commencing on the day after the
applicable required filing date, additional interest shall accrue on the
principal amount of the Securities and, if the Exchange Offer has been
consummated, the Exchange Securities, each at a rate of 0.25% per annum; or
(ii) (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by the SEC on or prior
to the 180th day after the Issue Date or (B) notwithstanding that the Company
has consummated or will consummate an Exchange Offer, the Company is required
to file a Shelf Registration Statement and such Shelf Registration Statement is
not declared effective by the SEC on or prior to the 30th day after the date
such Shelf Registration Statement was required to be filed, then, commencing on
the 181st day after the Issue Date, liquidated damages shall accrue on the
principal amount of the Securities and, if the Exchange Offer has been
consummated, the Exchange Securities, each at a rate of 0.25% per annum; or
(iii) (A) the Company has not exchanged Exchange Securities
for all Securities validly tendered for exchange by their respective Holders,
in accordance with the terms of the Exchange Offer on or prior to the 210th day
after the Issue Date or (B) if applicable, the Shelf Registration Statement has
been declared effective and such Shelf Registration Statement ceases to be
effective at any time prior to the expiration of the Rule 144(k) Period (other
than after such time as all Securities have been disposed of thereunder or
otherwise cease to be Registrable Securities), then liquidated damages shall
accrue on the principal amount of the Securities and, if the Exchange Offer has
been consummated, the Exchange Securities, each at a rate of 0.25% per annum
commencing on (x) the 211th day after the Issue Date, in the case of (A) above,
or (y) the day such Shelf Registration Statement ceases to be effective in the
case of (B) above;
provided, however, that the liquidated damages on the Securities and any
outstanding Exchange Securities, may not exceed in the aggregate 0.25% per
annum; provided, further, however, that (1) upon the filing of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
clause (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the case of clause
(ii) above), or (3) upon the exchange of Exchange Securities for all Securities
tendered (in the case of clause (iii)(A) above), or upon the effectiveness of
the Shelf Registration Statement which had ceased to remain effective (in the
case of clause (iii)(B) above) liquidated damages on the Securities and any
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<PAGE> 11
outstanding Exchange Securities, as a result of such clause (or relevant
subclause thereof), as the case may be, shall cease to accrue and accumulate.
Any amounts of additional interest and additional Distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above ("Liquidated Damages"), will
be payable in cash on the next succeeding June 30 or December 31, as the case
may be, to Holders on the relevant record dates for the payment of interest
pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies
available to the Holders, the Company acknowledges that any failure by the
Company to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Holders for which there
is no adequate remedy at law, that it would not be possible to measure damages
for such injuries precisely and that, in the event of any such failure, any
Holder may obtain such relief as may be required to specifically enforce the
Company's obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations
of the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by Sections 2(a) and 2(b)
hereof within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be selected by
the Company, (ii) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof and, in
the case of an Exchange Offer, be available for the exchange of the Registrable
Securities, and (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use their best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof; provided, however, that if (1) such filing is
pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall furnish
to and afford the Holders of the Registrable Securities and each Participating
Broker-Dealer, as the case may be, covered by such Registration Statement,
their counsel and the managing underwriters, if any, a reasonable opportunity
to review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed. The Company shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may be, their
counsel or the managing underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration
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<PAGE> 12
Statement effective for the Effectiveness Period or the Applicable Period, as
the case may be; and cause each Prospectus to be supplemented, if so determined
by the Company or requested by the SEC, by any required prospectus supplement
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the selling
Holders thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf Registration Statement,
at least three Business Days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed and
advising such Holder that the distribution of Registrable Securities will be
made in accordance with the method selected by the Majority Holders; and (ii)
furnish to each Holder of Registrable Securities included in the Shelf
Registration Statement and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Securities; and (iii) consent to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders of
Registrable Securities included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, register or
qualify the Registrable Securities under all applicable state securities or
"blue sky" laws of such jurisdictions by the time the applicable Registration
Statement is declared effective by the SEC as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request in
writing in advance of such date of effectiveness, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder
and underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general consent to
service of process in any jurisdiction where it would not otherwise be subject
to such service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom the Company has received prior written
notice that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof, are seeking to
sell Exchange Securities and are required to deliver Prospectuses, notify each
Holder of Registrable Securities or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if any, promptly and
promptly confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective
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<PAGE> 13
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for amendments and supplements a
Registration Statement or Prospectus or for additional information after the
Shelf Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the qualification of the
Registrable Securities or the Exchange Securities to be offered or sold by the
Participating Broker-Dealer in any jurisdiction described in paragraph 3(d)
hereof or the initiation of any proceedings for that purpose, (iv) in the case
of a Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, any of the representations and warranties of the Company contained in
any purchase agreement, securities sales agreement or other similar agreement
shall cease to be true and correct in all material respects, (v) of the
happening of any event or the failure of any event to occur or the discovery of
any facts or otherwise, during the Effectiveness Period which makes any
statement made in such Registration Statement or the related Prospectus untrue
in any material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (vi) the Company is reasonable determination that a
post-effective amendment to the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage of such
Registration Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends and in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders or the underwriters may reasonably request at least two
Business Days prior to the closing of any sale of Registrable Securities
pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best efforts
to prepare a supplement or post-effective amendment to such Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to notify each
Holder to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event;
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<PAGE> 14
(j) in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after the initial
filing of a Registration Statement, provide a reasonable number of copies of
such document to the Holders; and make such of the representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Securities or the Initial Purchaser on behalf of such Holders available for
discussion of such document;
(k) obtain a CUSIP number for all Exchange Securities and
the Securities, not later than the effective date of an Exchange Offer
Registration Statement, and provide the Trustee with printed certificates for
the Exchange Securities or the Registrable Securities in a form eligible for
deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939 (the "TIA") in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, and effect
such changes to such documents as may be required for them to be so qualified
in accordance with the terms of the TIA and execute, and use its best efforts
to cause the relevant trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed
with the SEC to enable such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions as are reasonably
requested in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) the Initial
Purchaser, in the case where the Initial Purchaser holds Securities acquired by
it as part of its initial distribution and (y) other Holders of Securities
covered thereby: (i) make such representations and warranties to Holders of
such Registrable Securities and the underwriters (if any), with respect to the
business of the Company and its subsidiaries as then conducted and the Shelf
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which may be in the form of a reliance letter) in
form and substance reasonably satisfactory to the managing underwriters (if
any) and the Holders of a majority in principal amount of the Registrable
Securities being sold, addressed to each selling Holder and the underwriters
(if any) covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such underwriters (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions); (iii)
obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type
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<PAGE> 15
customarily covered in "cold comfort" letters in connection with underwritten
offerings and such other matters as reasonably requested by such underwriters
in accordance with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 4
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities covered by
such Shelf Registration Statement and the managing underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section (including,
without limitation, such underwriters and selling Holders). The above shall be
done at each closing under such underwriting agreement, or as and to the extent
required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, make reasonably available for
inspection by any selling Holder of such Registrable Securities being sold or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securities, and any
attorney, accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors
and employees of the Company and its subsidiaries to supply all relevant
information in each case reasonably requested by any such Inspector in
connection with such Shelf Registration Statement provided, however, that the
foregoing inspection and information gathering shall be coordinated by the
Initial Purchaser and, on behalf of the selling Holders of Registrable
Securities, by one counsel designated as described in Section 2(c) hereof.
Records which the Company determines, in good faith, to be confidential and any
records which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a material misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or is
necessary in connection with any action, suit or proceeding or (iii) the
information in such Records has been made generally available to the public.
Each selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that information obtained by
it as a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the securities of the
Company unless and until such is made generally available to the public. Each
selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree in writing that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its expense
to undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(o) comply with all applicable rules and regulations of
the SEC so long as any provision of this Agreement shall be applicable and make
generally available to their security
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<PAGE> 16
holders earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after
the effective date of a Registration Statement, which statements shall cover
said 12-month periods;
(p) upon consummation of an Exchange Offer or a Private
Exchange, if requested by the Trustee, obtain an opinion of counsel to the
Company addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or the Private Exchange, as the
case may be, and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Securities or the Private
Exchange Securities, as the case may be, and (ii) each of the Exchange
Securities or the Private Exchange Securities, as the case may be, constitute a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with their respective terms (in each case, with customary
exceptions);
(q) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to the
Company (or to such other Person as directed by the Company), in exchange for
the Exchange Securities or the Private Exchange Securities, as the case may be,
mark, or cause to be marked, on such Registrable Securities delivered by such
Holders that such Registrable Securities are being cancelled in exchange for
the Exchange Securities or the Private Exchange Securities, as the case may be;
in no event shall such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD;
(s) use its best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t)(A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," which section shall be reasonably acceptable
to the Initial Purchaser or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer (a "Participating Broker-Dealer")
that holds Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the Exchange Offer, whether
such positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the reasonable
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<PAGE> 17
judgment of the Initial Purchaser or such other representative, represent the
prevailing views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker- Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (each of the Company hereby
consents to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto by any Person
subject to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any amendment
or supplement thereto), (iii) keep the Exchange Offer Registration Statement
effective and amend and supplement the Prospectus contained therein in order to
permit such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as such Persons must comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the Exchange Securities;
provided, however, that such period shall not be required to exceed 90 days (or
such longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (iv) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer
Registration Statement, the Company agrees to deliver to the Initial Purchaser
or to another representative of the Participating Broker-Dealers, if requested
by such Initial Purchaser or such other representative of the Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers upon consummation
of the Exchange Offer (i) an opinion of counsel in form and substance
reasonably satisfactory to the Initial Purchaser or such other representative
of the Participating Broker-Dealers, covering the matters customarily covered
in opinions requested in connection with Exchange Offer Registration Statements
and such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate containing
certifications substantially similar to those set forth in Section 5(d) of the
Purchase Agreement and such additional
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<PAGE> 18
certifications as are customarily delivered in a public offering of debt
securities and (iii) as well as upon the effectiveness of the Exchange Offer
Registration Statement, a comfort letter, in each case, in customary form if
permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller as may be required by the staff of the SEC to
be included in a Registration Statement. The Company may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
The Company shall have no obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish such information.
In the case of (1) a Shelf Registration Statement or (2) Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided
in Section 3(t) hereof, are seeking to sell Exchange Securities and are
required to deliver Prospectuses, each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith suspend use of the Prospectus and discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may be, current at
the time of receipt of such notice. If the Company shall give any such notice
to suspend the disposition of Registrable Securities, or Exchange Securities,
as the case may be, pursuant to a Registration Statement, the Company shall use
its best efforts to file and have declared effective (if an amendment) as soon
as practicable an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and
including the date when the Company shall have made available to the Holders
(x) copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement, the
Company shall indemnify and hold harmless the Initial Purchaser, each Holder,
each underwriter who participates in an offering of the Registrable Securities,
each Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective directors, officers, employees
and agents, as follows:
- 17 -
<PAGE> 19
(i) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as incurred,
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any
amendment thereto), covering Registrable Securities or Exchange
Securities, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as incurred,
to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the prior written consent of the Company; and
(iii) from and against any and all expenses
whatsoever, as incurred (including reasonable fees and disbursements
of counsel chosen by such Holder, such Participating Broker-Dealer, or
any underwriter (except to the extent otherwise expressly provided in
Section 4(c) hereof)), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 4(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished in writing to the
Company by such Holder, such Participating Broker- Dealer, or any underwriter
with respect to such Holder, Participating Broker-Dealer or any underwriter, as
the case may be, expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
and (ii) the Company shall not be liable to any such Holder, Participating
Broker-Dealer, any underwriter or controlling person, with respect to any
untrue statement or alleged untrue statement or omission or alleged omission in
any preliminary Prospectus to the extent that any such loss, liability, claim,
damage or expense of any Holder, Participating Broker-Dealer, any underwriter
or controlling person results from the fact that such Holder, any underwriter
or Participating Broker-Dealer, sold Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the final Prospectus as then amended or supplemented if the Company had
previously furnished copies thereof to such Holder, underwriter, or
Participating Broker-Dealer, and the loss, liability, claim,
- 18 -
<PAGE> 20
damage or expense of such Holder, underwriter, Participating Broker-Dealer, or
controlling person results from an untrue statement or omission of a material
fact contained in the preliminary Prospectus which was corrected in the final
Prospectus. Any amounts advanced by the Company to an indemnified party
pursuant to this Section 4 as a result of such losses shall be returned to the
Company if it shall be finally determined by such a court in a judgment not
subject to appeal or final review that such indemnified party was not entitled
to indemnification by the Company.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company any underwriter and the other selling
Holders and each of their respective directors, officers (including each
officer of the Company who signed the Registration Statement), employees and
agents and each Person, if any, who controls the Company, any underwriter or
any other selling Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such selling Holder with
respect to such Holder expressly for use in such Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or supplement
thereto); provided, however, that, in the case of a Shelf Registration
Statement, no such Holder shall be liable for any amount hereunder in excess of
the amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have under this Section 4, except to the extent that it is materially
prejudiced by such failure. An indemnifying party may participate at its own
expense in the defense of such action. If an indemnifying party so elects
within a reasonable time after receipt of such notice, an indemnifying party,
severally or jointly with any other indemnifying parties receiving such notice,
may assume the defense of such action with counsel chosen by it and reasonably
acceptable to the indemnified parties defendant in such action, provided,
however, that if (i) representation of such indemnified party by the same
counsel would present a conflict of interest or (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and any such indemnified party reasonably
determines that there may be legal defenses available to such indemnified party
which are different from or in addition to those available to such indemnifying
party, then in the case of clauses (i) and (ii) of this Section 4(c) such
indemnifying party and counsel for each indemnifying party or parties shall not
be entitled to assume such defense. If an indemnifying party is not entitled
to assume the defense of such action as a result of the proviso to the
preceding sentence, counsel for such indemnifying party and counsel for each
indemnified party or parties shall be entitled to conduct the defense of such
indemnified party or parties. If an indemnifying party assumes the defense of
such action, in accordance with and as permitted by the provisions of this
paragraph, such indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred
- 19 -
<PAGE> 21
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to local counsel), separate from its own counsel, for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional written release in form and substance satisfactory to
the indemnified parties of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Notwithstanding the last sentence of Section 4(c), if
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel
pursuant to Section 4(a)(iii) above, such indemnifying party agrees that it
shall be liable for any settlement effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided that an indemnifying party shall not be
liable for any such settlement effected without its consent if such
indemnifying party (1) reimburses such indemnified party in accordance with
such request to the extent it considers reasonable and (2) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
(e) In order to provide for just and equitable
contribution in circumstances under which any of the indemnity provisions set
forth in this Section 4 is for any reason held to be unavailable to the
indemnified parties although applicable in accordance with its terms, the
Company and the Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company, and the Holders, as incurred; provided that
no Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Company
and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company, on the one hand, and the Holders, on the other
hand, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault of the
Company, on the one hand, and of the Holders, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact
- 20 -
<PAGE> 22
relates to information supplied by the Company, on the one hand, or by or on
behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each affiliate of a
Holder, and each director, officer, employee, agent and Person, if any, who
controls a Holder or such affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
the Company.
5. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably required under the terms of such
underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by a Shelf Registration Statement who desire to do so may
sell the securities covered by such Shelf Registration in an underwritten
offering. In any such underwritten offering, the underwriter or underwriters
and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Registrable
Securities included in such offering; provided, however, that such underwriters
and managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company
is subject to the reporting requirements of Section 13 or 15 of the Exchange
Act and any Registrable Securities remain outstanding, the Company will use its
best efforts to file the reports required to be filed by it under the
Securities Act and Section 13(a) or 15(d) of the Exchange Act and the rules and
regulations adopted by the SEC thereunder, or, if it ceases to be so required
to file such reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales of their securities pursuant to Rule 144 under the Securities Act,
(b) deliver such information to a prospective purchaser as is necessary to
permit sales of their securities pursuant to Rule 144A under the Securities Act
and it will take such further action as any Holder of Registrable Securities
may reasonably request, and (c) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
(i) Rule 144 under the Securities Act, as such rule may be amended from time to
time, (ii) Rule 144A under the Securities Act,
- 21 -
<PAGE> 23
as such rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided no amendment, modification or
supplement or waiver or consent to the departure with respect to the provisions
of Section 4 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder of Registrable
Securities. Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securities, by
written agreement signed by the Company and the Initial Purchaser, to cure any
ambiguity, correct or supplement any provision of this Agreement that may be
inconsistent with any other provision of this Agreement or to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with other provisions of this Agreement, (ii)
this Agreement may be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may be given, by written
agreement signed by the Company and the Initial Purchaser to the extent that
any such amendment, modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with applicable law
(including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to the Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by the Initial Purchaser and the Company.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect to
the Initial Purchaser, the address set forth in the Purchase Agreement; and
(ii) if to the Company, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the
- 22 -
<PAGE> 24
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee,
at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of the Initial Purchaser, including, without limitation and without the need
for an express assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement
or the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement and such Person shall be entitled
to receive the benefits hereof.
(f) Third-Party Beneficiary. The Initial Purchaser shall
be a third party beneficiary of the agreements made hereunder between the
Company, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF
THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
- 23 -
<PAGE> 25
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Securities Held by the Company or its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
FIRST PALM BEACH BANCORP, INC.
By: /s/ R. RANDY GUEMPLE
-----------------------------------
Name: R. RANDY GUEMPLE
Title: EVP & COO
- 24 -
<PAGE> 26
Confirmed and accepted as of
the date first above
written:
KEEFE, BRUYETTE & WOODS, INC.
By: /s/ EMMETT J. DALY
--------------------------------
Name: EMMETT J. DALY
Title: SVP
- 25 -
<PAGE> 1
EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the respective periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED SEPTEMBER 30, ENDED JUNE 30,
----------------------------------------- --------------
1992 1993 1994 1995 1996 1996 1997
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits............ 6.42x 4.97x 2.34x 1.83x 1.08x 2.38x 2.24x
Including interest on deposits............ 1.33x 1.27x 1.31x 1.19x 1.02x 1.29x 1.22x
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
represent net income (loss) before extraordinary items and cumulative effect of
changes in accounting principles plus applicable income taxes and fixed charges.
Fixed charges, excluding interest on deposits, include gross interest expense
(other than on deposits) and the proportion deemed representative of the
interest factor of rent expense, net of income from subleases. Fixed charges,
including gross interest on deposits, include all interest expense and the
proportion deemed representative of the interest factor of rent expense, net of
income from subleases.
<PAGE> 1
EXHIBIT 23.1
[DELOITTE & TOUCHE LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
First Palm Beach Bancorp, Inc. on Form S-4 of our report dated December 10,
1996, incorporated by reference in the Annual Report on Form 10-K of First Palm
Beach Bancorp, Inc. for the year ended September 30, 1996, and to the reference
to us under the heading "Experts" in the Prospectus, which is part of this
registration statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
September 9, 1997
<PAGE> 1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
FIRST PALM BEACH BANCORP,INC.
(Exact name of obligor as specified in its charter)
Delaware 65-0418027
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
450 South Australian Avenue
West Palm Beach, Florida 33401
(Address of principal executive offices) (Zip code)
----------------------
Series B 10.35% Senior Debentures Due 2002
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
Name Address
- ----------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE
COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT
HERETO, PURSUANT TO RULE 7a-29 UNDER THE TRUST INDENTURE ACT
OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form
T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration
Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the
Trustee published pursuant to law or to the
requirements of its supervising or examining
authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the State
of New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 5th day of September, 1997.
THE BANK OF NEW YORK
By: /s/ THOMAS E. TABOR
---------------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
<PAGE> 5
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................32,895,077
LESS: Allowance for loan and
lease losses ..............633,877
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ......10,564,652
Interest-bearing .........15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing .........560,944
Interest-bearing .........14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
===========
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
------------
Total equity capital ................ 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my knowledge
and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by us and to the
best of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
Alan R. Griffith )
J. Carter Bacot ) Directors
Thomas A. Renyi )
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
FIRST PALM BEACH BANCORP, INC.
OFFER TO EXCHANGE ITS
SERIES B 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
PURSUANT TO THE PROSPECTUS DATED , 1997
(AS THE SAME MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME, THE "PROSPECTUS")
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 1997, OR ON SUCH LATER DATE OR TIME TO WHICH THE
COMPANY MAY EXTEND THE EXCHANGE OFFER (THE "EXPIRATION DATE"). TENDERS MAY BE
WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent For The Exchange Offer Is:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
By Registered or Certified Mail: Facsimile Transmissions: By Hand or Overnight Delivery:
The Bank of New York (Eligible Institutions The Bank of New York
Only)
101 Barclay Street, 7E (212) 571-3080 101 Barclay Street
New York, New York 10286 To Confirm by telephone or Corporate Trust Services Window
Attention: Reorganization Section for Information: Ground Level
(name) ________ (212) 815-6337 New York, New York 10286
Attention: Reorganization
Section
(name) ________
</TABLE>
<PAGE> 2
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus. As used herein, the term "Holder" means a holder
of Original Senior Debentures, including any participant ("DTC Participant") in
the book-entry transfer facility system of The Depository Trust Company ("DTC")
whose name appears on a security position listing as the owner of the Original
Senior Debentures. As used herein, the term "Certificates" means physical
certificates representing Original Senior Debentures.
To participate in the Exchange Offer (as defined below), Holders must
tender by (a) book-entry transfer pursuant to the procedures set forth in the
Prospectus under "The Exchange Offer -- Procedures for Tendering Original Senior
Debentures," or (b) forwarding Certificates herewith. Holders who are DTC
Participants tendering by book-entry transfer must execute such tender through
the Automated Tender Offer Program ("ATOP") of DTC. A Holder using ATOP should
transmit its acceptance to DTC on or prior to the Expiration Date. DTC will
verify such acceptance, execute a book-entry transfer of the tendered Original
Senior Debentures into the Exchange Agent's account at DTC and then send to the
Exchange Agent confirmation of such book-entry transfer (a "book-entry
confirmation"), including an agent's message ("Agent's Message") confirming that
DTC has received an express acknowledgment from such Holder that such Holder has
received and agrees to be bound by this Letter of Transmittal and that the
Company may enforce this Letter of Transmittal against such Holder. The
book-entry confirmation must be received by the Exchange Agent in order for the
tender relating thereto to be effective. Book-entry transfer to DTC in
accordance with DTC's procedures does not constitute delivery of the book-entry
confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, as well as this
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective.
Holders of Original Senior Debentures who cannot complete the procedures
for delivery by book-entry transfer of such Original Senior Debentures on a
timely basis or who cannot deliver their Certificates for such Original Senior
Debentures and all other required documents to the Exchange Agent on or prior to
the Expiration Date, must, in order to participate in the Exchange Offer, tender
their Original Senior Debentures according to the guaranteed delivery procedures
set forth in the Prospectus under "The Exchange Offer -- Procedures for
Tendering Original Senior Debentures."
<PAGE> 3
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES, THIS
LETTER OF TRANSMITTAL, AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE
IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
ALL TENDERING HOLDERS COMPLETE THIS BOX:
<TABLE>
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
DESCRIPTION OF ORIGINAL SENIOR DEBENTURES
- ------------------------------------------------------------------------------------------------------------------------------
ORIGINAL SENIOR DEBENTURES TENDERED
IF BLANK, PLEASE PRINT NAME AND ADDRESS OF REGISTERED HOLDER. (ATTACH ADDITIONAL LIST IF NECESSARY)
- ------------------------------------------------------------------------------------------------------------------------------
PRINCIPAL AMOUNT OF
ORIGINAL SENIOR
AGGREGATE PRINCIPAL DEBENTURES
CERTIFICATE AMOUNT OF ORIGINAL TENDERED
NUMBER(S)* SENIOR DEBENTURES (IF LESS THAN ALL)**
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
TOTAL AMOUNT
TENDERED
------------------------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Original Senior Debentures may be tendered in whole or in part in principal amount denominations of $100,000 and integral
multiples of $1,000 in excess thereof, provided that if any Original Senior Debentures are tendered for exchange in part,
the untendered principal amount thereof must be $100,000 or any integral multiple of $1,000 in excess thereof. All Original
Senior Debentures held shall be deemed tendered unless a lesser number is specified in this column. See Instruction 4.
</TABLE>
- --------------------------------------------------------------------------------
-2-
<PAGE> 4
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED ORIGINAL SENIOR DEBENTURES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
DTC Account Number:
Transaction Code Number:
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED ORIGINAL SENIOR DEBENTURES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT, AND COMPLETE
THE FOLLOWING:
Name of Registered Holder(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution:
DTC Account Number:
Transaction Code Number:
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED ORIGINAL
SENIOR DEBENTURES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET
FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE ORIGINAL SENIOR
DEBENTURES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
-3-
<PAGE> 5
Ladies and Gentlemen:
The undersigned hereby tenders to First Palm Beach Bancorp, Inc., a
corporation organized under the laws of the State of Delaware (the "Company"),
the above described aggregate principal amount of the Company's Original Senior
Debentures in exchange for a like aggregate principal amount of the Company's
Exchange Senior Debentures which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), upon the terms and subject to the
conditions set forth in the Prospectus, receipt of which is hereby acknowledged,
and in this Letter of Transmittal (which, together with the Prospectus,
constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Original Senior Debentures tendered herewith in accordance with
the terms and conditions of the Exchange Offer (including, if the Exchange Offer
is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Original
Senior Debentures as are being tendered herewith. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent as its agent and
attorney-in-fact (with full knowledge that the Exchange Agent is also acting as
agent of the Company in connection with the Exchange Offer) with respect to the
tendered Original Senior Debentures, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest)
subject only to the right of withdrawal described in the Prospectus, to (i)
deliver Certificates for Original Senior Debentures to the Company together with
all accompanying evidences of transfer and authenticity to, or upon the order
of, the Company, upon receipt by the Exchange Agent, as the undersigned's agent,
of the Exchange Senior Debentures to be issued in exchange for such Original
Senior Debentures, (ii) present Certificates for such Original Senior Debentures
for transfer, and to transfer the Original Senior Debentures on the books of the
Company, and (iii) receive for the account of the Company all benefits and
otherwise exercise all rights of beneficial ownership of such Original Senior
Debentures, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE
ORIGINAL SENIOR DEBENTURES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED
FOR EXCHANGE, THE COMPANY WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE ORIGINAL SENIOR DEBENTURES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO
BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF
THE ORIGINAL SENIOR DEBENTURES TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY
WITH ITS OBLIGATIONS UNDER THE REGISTRATION AGREEMENT. THE UNDERSIGNED HAS READ
AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered Holder(s) of the Original
Senior Debentures tendered hereby should be printed in the box entitled
"Description of Original Senior Debentures" above, if they are not already set
forth in such box, as they appear on the Certificates representing such Original
Senior Debentures or on the records of DTC, as the case may be. The Certificate
number(s) of any such Certificates and the principal amount of such Original
Senior Debentures should be specified in such box as indicated therein.
The undersigned understands that tenders of Original Senior Debentures
pursuant to any one of the procedures described in "The Exchange
Offer -- Procedures for Tendering Original Senior Debentures" in the Prospectus
and in the instructions attached hereto will, upon the Company's acceptance for
exchange of such tendered Original Senior Debentures, constitute a binding
agreement between the undersigned and the Company upon the terms and subject to
the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set forth in
the Prospectus, the Company may not be required to accept for exchange any of
the Original Senior Debentures tendered hereby.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Senior
Debentures be issued in the name(s) of the undersigned or credited to the
account at DTC indicated above in the case of a book-entry transfer of Original
Senior Debentures.
-4-
<PAGE> 6
If any Original Senior Debentures are submitted for more Exchange Senior
Debentures than are accepted for exchange, then, without expense to the
tendering Holder, promptly following the expiration or termination of the
Exchange Offer, such non-exchanged Original Senior Debentures will, if evidenced
by Certificates, be returned, or will, if evidenced by book-entry, be credited
to the account at DTC indicated above. If applicable, substitute Certificates
representing non-exchanged Original Senior Debentures will be issued to the
undersigned or non-exchanged Original Senior Debentures will be credited to the
account at DTC indicated above in the case of a book-entry transfer of Original
Senior Debentures.
Unless otherwise indicated under "Special Delivery Instructions,"
certificates for Original Senior Debentures and for Exchange Senior Debentures
will be delivered to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING ORIGINAL SENIOR DEBENTURES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY, (II) ANY EXCHANGE SENIOR DEBENTURES TO BE RECEIVED BY THE
UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS, (III) THE
UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE
IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF EXCHANGE SENIOR
DEBENTURES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (IV) IF THE UNDERSIGNED IS
NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT INTEND TO
ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF SUCH
EXCHANGE SENIOR DEBENTURES. BY TENDERING ORIGINAL SENIOR DEBENTURES PURSUANT TO
THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF TRANSMITTAL, A HOLDER OF
ORIGINAL SENIOR DEBENTURES THAT IS A BROKER-DEALER REPRESENTS AND AGREES,
CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF THE DIVISION
OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE COMMISSION TO THIRD
PARTIES, THAT (A) SUCH ORIGINAL SENIOR DEBENTURES ARE HELD BY SUCH BROKER-DEALER
ONLY AS A NOMINEE, OR (B) SUCH ORIGINAL SENIOR DEBENTURES WERE ACQUIRED BY IT
FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS MEETING THE REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH EXCHANGE SENIOR DEBENTURES
(PROVIDED THAT, BY SO ACKNOWLEDGING AND BY DELIVERING THE PROSPECTUS, IT WILL
NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT).
THE COMPANY HAS AGREED THAT, SUBJECT TO THE PROVISIONS OF THE REGISTRATION
AGREEMENT, THE PROSPECTUS MAY BE USED IN CONNECTION WITH RESALES OF EXCHANGE
SENIOR DEBENTURES RECEIVED IN EXCHANGE FOR ORIGINAL SENIOR DEBENTURES BY A
BROKER-DEALER WHO ACQUIRED ORIGINAL SENIOR DEBENTURES FOR ITS OWN ACCOUNT AS A
RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING BROKER-
DEALER") FOR A PERIOD ENDING 90 DAYS AFTER THE EXPIRATION DATE (SUBJECT TO
EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR,
IF EARLIER, WHEN ALL SUCH EXCHANGE SENIOR DEBENTURES HAVE BEEN DISPOSED OF BY
SUCH PARTICIPATING BROKER-DEALER. IN THAT REGARD, EACH PARTICIPATING
BROKER-DEALER, BY TENDERING SUCH ORIGINAL SENIOR DEBENTURES AND EXECUTING THIS
LETTER OF TRANSMITTAL OR BY TENDERING THROUGH BOOK-ENTRY TRANSFER IN LIEU
THEREOF, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY OF THE OCCURRENCE
OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR
INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR
WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER
TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE
OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION AGREEMENT, SUCH
PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF EXCHANGE SENIOR DEBENTURES
PURSUANT TO THE PROSPECTUS UNTIL (I) THE COMPANY HAS AMENDED OR
-5-
<PAGE> 7
SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR OMISSION AND HAS
FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING
BROKER-DEALER OR (II) THE COMPANY HAS GIVEN NOTICE THAT THE SALE OF THE EXCHANGE
SENIOR DEBENTURES MAY BE RESUMED, AS THE CASE MAY BE, IF THE COMPANY GIVES SUCH
NOTICE TO SUSPEND THE SALE OF THE EXCHANGE SENIOR DEBENTURES, THEY SHALL EXTEND
THE 90-DAY PERIOD REFERRED TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS
ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH THE RESALE OF EXCHANGE
SENIOR DEBENTURES BY THE NUMBER OF DAYS DURING THE PERIOD FROM AND INCLUDING THE
DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE DATE ON WHICH (I)
PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR
AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE EXCHANGE SENIOR DEBENTURES
OR (II) THE COMPANY HAS GIVEN NOTICE THAT THE SALE OF EXCHANGE SENIOR DEBENTURES
MAY BE RESUMED, AS THE CASE MAY BE.
AS A RESULT, A PARTICIPATING BROKER-DEALER WHO INTENDS TO USE THE
PROSPECTUS IN CONNECTION WITH RESALES OF EXCHANGE SENIOR DEBENTURES RECEIVED IN
EXCHANGE FOR ORIGINAL SENIOR DEBENTURES PURSUANT TO THE EXCHANGE OFFER MUST
NOTIFY THE COMPANY, OR CAUSE THE COMPANY TO BE NOTIFIED, ON OR PRIOR TO THE
EXPIRATION DATE, THAT IT IS A PARTICIPATING BROKER-DEALER. SUCH NOTICE MAY BE
GIVEN IN THE SPACE PROVIDED ABOVE OR MAY BE DELIVERED TO THE EXCHANGE AGENT AT
THE ADDRESS SET FORTH IN THE PROSPECTUS UNDER "THE EXCHANGE OFFER -- EXCHANGE
AGENT."
Holders whose Original Senior Debentures are accepted for exchange will not
receive payments of interest on such Original Senior Debentures and the
undersigned hereby waives the right to receive interest on such Original Senior
Debentures. Accordingly, holders of Exchange Senior Debentures as of December
15, 1997 (the record date for the initial payment of interest on December 31,
1997) will be entitled to receive such payment of interest. Interest to be paid
on the Exchange Senior Debentures will accumulate from June 30, 1997.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Original Senior Debentures tendered hereby.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF ORIGINAL
SENIOR DEBENTURES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE ORIGINAL SENIOR DEBENTURES AS SET FORTH IN SUCH BOX.
-6-
<PAGE> 8
HOLDER(S) SIGN HERE
(SEE ATTACHED INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON THE LAST PAGE)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered Holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Original Senior Debentures hereby tendered or on the
records of DTC, as the case may be, or by any person(s) authorized to become the
registered Holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and other information as may
be required by the Company to comply with the restrictions on transfer
applicable to the Original Senior Debentures). If signature is by an
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or another acting in a fiduciary capacity or representative
capacity, set forth the signatory's full title. See Instruction 5.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Dated: _______________________________ , 1997
Name(s):
(PLEASE PRINT)
Capacity (full title):
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
Tax Identification or Social Security Number(s):
-7-
<PAGE> 9
- --------------------------------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(SEE ATTACHED INSTRUCTIONS 2 AND 5)
------------------------------------------------------------------------------
(AUTHORIZED SIGNATURE)
Dated: _______________________________ , 1997
Name of Firm:
Capacity (full title):
(PLEASE PRINT)
Address:
==============================================================================
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS
(SEE ATTACHED INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if certificates for Exchange Senior Debentures or
non-tendered or non-exchanged Original Senior Debentures are to be issued in
the name of someone other than the registered Holder(s) of the Original Senior
Debentures whose name(s) appear(s) above.
Issue
[ ] Non-tendered or non-exchanged Original Senior Debentures to:
[ ] Exchange Senior Debentures to:
Name(s):
Address:
(INCLUDE ZIP CODE)
AREA CODE AND
TELEPHONE NUMBER:
TAX IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S):
============================================================
SPECIAL DELIVERY INSTRUCTIONS
(SEE ATTACHED INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if certificates for Exchange Senior Debentures or
non-tendered or non-exchanged Original Senior Debentures are to be sent to
someone other than the registered Holder(s) of the Original Senior Debentures
whose name(s) appear(s) above, or such registered Holder(s) at an address
other than that shown above.
Mail
[ ] Non-tendered or non-exchanged Original Senior Debentures to:
[ ] Exchange Senior Debentures to:
Name(s):
Address:
(INCLUDE ZIP CODE)
AREA CODE AND
TELEPHONE NUMBER:
TAX IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S):
- ------------------------------------------------------------
-8-
<PAGE> 10
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER.
1. BOOK-ENTRY TRANSFER; DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES;
GUARANTEED DELIVERY PROCEDURES. To tender in the Exchange Offer, Holders must
tender by (a) forwarding Certificates herewith or (b) book-entry transfer
pursuant to the procedures set forth in "The Exchange Offer -- Procedures for
Tendering Original Senior Debentures" in the Prospectus. Holders who are DTC
Participants tendering by book-entry transfer must execute such tender through
DTC's ATOP system. A Holder using ATOP should transmit its acceptance to DTC on
or prior to the Expiration Date. DTC will verify such acceptance, execute a
book-entry transfer of the tendered Original Senior Debentures into the Exchange
Agent's account at DTC and then send to the Exchange Agent a book-entry
confirmation, including an Agent's Message confirming that DTC has received an
express acknowledgment from such Holder that such Holder has received and agrees
to be bound by this Letter of Transmittal and that the Company may enforce this
Letter of Transmittal against such Holder. The book-entry confirmation must be
received by the Exchange Agent in order for the tender relating thereto to be
effective. Book-entry transfer to DTC in accordance with DTC's procedure does
not constitute delivery of the book-entry confirmation to the Exchange Agent.
IF THE TENDER IS NOT MADE THROUGH ATOP, CERTIFICATES, AS WELL AS THIS
LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF), PROPERLY COMPLETED AND DULY
EXECUTED, WITH ANY REQUIRED SIGNATURE GUARANTEES, AND ANY OTHER DOCUMENTS
REQUIRED BY THIS LETTER OF TRANSMITTAL, MUST BE RECEIVED BY THE EXCHANGE AGENT
AT ITS ADDRESS SET FORTH HEREIN ON OR PRIOR TO THE EXPIRATION DATE IN ORDER FOR
SUCH TENDER TO BE EFFECTIVE.
Original Senior Debentures may be tendered in whole or in part in the
principal amount of $100,000 (100 Original Senior Debentures) and integral
multiples of $1,000 in excess thereof, provided that, if any Original Senior
Debentures are tendered for exchange in part, the untendered principal amount
thereof must be $100,000 (100 Original Senior Debentures) or any integral
multiple of $1,000 in excess thereof.
Holders who wish to tender their Original Senior Debentures and (i) whose
Original Senior Debentures are not immediately available or (ii) who cannot
deliver their Original Senior Debentures, this Letter of Transmittal and all
other required documents to the Exchange Agent on or prior to the Expiration
Date or (iii) who cannot complete the procedures for delivery by book-entry
transfer on a timely basis, may tender their Original Senior Debentures by
properly completing and duly executing a notice to the Exchange Agent
guaranteeing delivery to the Exchange Agent of either certificates representing
the Original Senior Debentures or a book-entry confirmation in compliance with
the requirements set forth in the Prospectus (the "Notice of Guaranteed
Delivery"), pursuant to the guaranteed delivery procedures set forth in the
Prospectus under "The Exchange Offer -- Guaranteed Delivery." Pursuant to such
procedures: (i) such tender must be made by or through an Eligible Institution
(as defined below); (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form accompanying this Letter of
Transmittal, must be received by the Exchange Agent on or prior to the
Expiration Date; and (iii) (a) a book-entry confirmation or (b) the certificates
representing all tendered Original Senior Debentures, in proper form for
transfer, together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent within three New York Stock Exchange trading days after the
date of execution of such Notice of Guaranteed Delivery, all as provided in the
Prospectus under "The Exchange Offer -- Guaranteed Delivery."
A Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Original Senior
Debentures to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or
prior to the Expiration Date. As used herein and in the Prospectus, "Eligible
Institution" means a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as "an eligible guarantor institution," including (as such terms
are defined therein) (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program.
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES, THIS
LETTER OF TRANSMITTAL, AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE
IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
-9-
<PAGE> 11
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering Holder, by book-entry transfer through ATOP or execution
of a Letter of Transmittal (or facsimile thereof), waives any right to receive
any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered Holder(s)
of Original Senior Debentures tendered herewith, unless such Holder(s) has
completed either the box entitled "Special Issuance Instructions" or the
box entitled "Special Delivery Instructions" above, or
(ii) such Original Senior Debentures are tendered for the account of a
firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Original Senior Debentures" is inadequate, the Certificate
number(s) and/or the principal amount of Original Senior Debentures and any
other required information should be listed on a separate signed schedule which
is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Original Senior
Debentures will be accepted only in the principal amount of $100,000 (100
Original Senior Debentures) and integral multiples of $1,000 in excess thereof,
provided that if any Original Senior Debentures are tendered for exchange in
part, the untendered principal amount thereof must be $100,000 (100 Original
Senior Debentures) or any integral multiple of $1,000 in excess thereof. If less
than all the Original Senior Debentures are to be tendered, fill in the
principal amount of Original Senior Debentures that are to be tendered in the
box entitled "Principal Amount of Original Senior Debentures Tendered." If
applicable, new Certificate(s) for the Original Senior Debentures that were not
tendered will be sent to the address designated herein by such Holder promptly
after the Expiration Date. All Original Senior Debentures represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Original Senior Debentures
may be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to such date, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at one of its addresses set forth above or in the Prospectus on
or prior to such date. Any such notice of withdrawal must specify the name of
the person who tendered the Original Senior Debentures to be withdrawn, the
aggregate principal amount of Original Senior Debentures to be withdrawn, and,
if any Certificates for Original Senior Debentures have been tendered, the name
of the registered Holder of the Original Senior Debentures as set forth on any
such Certificates, if different from that of the person who tendered such
Original Senior Debentures. If Certificates for the Original Senior Debentures
have been delivered or otherwise identified to the Exchange Agent, then prior to
the physical release of such Certificates, the tendering Holder must submit the
serial numbers shown on the particular Certificates to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Original Senior Debentures tendered for the
account of an Eligible Institution. If Original Senior Debentures have been
tendered pursuant to the procedures for book-entry transfer set forth in the
Prospectus under "The Exchange Offer -- Procedures for Tendering Original Senior
Debentures," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of Original Senior Debentures.
Withdrawals of tenders of Original Senior Debentures may not be rescinded.
Original Senior Debentures properly withdrawn will not be deemed validly
tendered for purposes of the Exchange Offer, but may be retendered at any
subsequent time on or prior to the Expiration Date by following any of the
procedures described herein.
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
Neither the Company, any affiliates or assigns of the Company, the Exchange
Agent nor any other person shall be under any duty to give any notification of
any irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any Original Senior Debentures which have
been tendered but which are withdrawn will be returned or transferred by
book-entry, as the case may be, to the Holder thereof without cost to such
Holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered Holder(s) of the Original
Senior Debentures tendered hereby, the signature(s) must correspond exactly with
the name(s) as written on the face of the Certificate(s) for such Original
Senior Debentures, without alteration, enlargement or any change whatsoever, or
as recorded in DTC's book-entry transfer facility system, as the case may be.
If any Certificates tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Original Senior Debentures are registered in different
names on several Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal as there are different registrations of
-10-
<PAGE> 12
Certificates. If any tendered Original Senior Debentures are registered in
different names in several book-entry accounts, proper procedures for book-entry
transfer must be followed for each account.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and must submit proper evidence
satisfactory to the Company, in its sole discretion, of each such person's
authority so to act.
When this Letter of Transmittal is signed by the registered Holder(s) of
the Original Senior Debentures listed and transmitted hereby, or book-entry
transfer is effectuated by such Holder(s), no endorsement(s) of Certificate(s)
or separate bond power(s) are required except if Exchange Senior Debentures are
to be issued in the name of a person other than the registered Holder(s). If
such exception applies, signature(s) on such Certificate(s) or bond power(s)
must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered Holder(s) of the Original Senior Debentures listed, the
Certificate(s) must be endorsed or accompanied by appropriate bond powers,
signed exactly as the name(s) of the registered Holder(s) appear(s) on the
Certificates, and also must be accompanied by such opinions of counsel,
certifications and other information as the Company may require in accordance
with the restrictions on transfer applicable to the Original Senior Debentures.
In such event, signatures on such Certificates or bond powers must be guaranteed
by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Senior
Debentures are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if Exchange Senior Debentures are to be sent to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Original Senior Debentures not exchanged will be returned,
if evidenced by Certificates, by mail or, if tendered by book-entry transfer, by
crediting the account at DTC indicated above in Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Original Senior
Debentures, which determination shall be final and binding on all parties. The
Company reserves the absolute right to reject any and all tenders determined by
it not to be in proper form or the acceptance of which, or exchange for which,
may in the view of counsel to the Company be unlawful. The Company also reserves
the absolute right, subject to applicable law, to waive any of the conditions of
the Exchange Offer set forth in the Prospectus under "The Exchange
Offer -- Conditions to the Exchange Offer" or any conditions or irregularity in
any tender of Original Senior Debentures of any particular Holder whether or not
similar conditions or irregularities are waived in the case of other Holders.
The Company's interpretation of the terms and conditions of the Exchange Offer
(including this Letter of Transmittal and the instructions hereto) will be final
and binding. No tender of Original Senior Debentures will be deemed to have been
validly made until all irregularities with respect to such tender have been
cured or waived. The Company, any affiliates or assigns of the Company, the
Exchange Agent, or any other person shall not be under any duty to give
notification of any irregularities in tenders or incur any liability for failure
to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front cover of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and this
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a Holder whose tendered Original Senior Debentures are accepted for
exchange is required to provide the Exchange Agent with such Holder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the Holder or other payee to a $50 penalty. In
addition, payments to such Holders or other payees with respect to Original
Senior Debentures exchanged pursuant to the Exchange Offer may be subject to 31%
backup withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering Holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
Holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-9.
If the Holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60-day period
will be remitted to the Holder and no further amounts shall be retained or
withheld from payments made to the Holder thereafter. If, however, the Holder
has not provided the Exchange Agent with its TIN within such 60-day period,
amounts
-11-
<PAGE> 13
withheld will be remitted to the IRS as backup withholding. In addition, 31% of
all payments made thereafter will be withheld and remitted to the IRS until a
correct TIN is provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Original Senior Debentures or of the last transferee appearing on the
transfers attached to, or endorsed on, the Original Senior Debentures. If the
Original Senior Debentures are registered in more than one name or are not in
the name of the actual owner, consult the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for additional
guidance on which number to report.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional or contingent
tenders will be accepted. All tendering Holders, by execution of this Letter of
Transmittal, shall waive any right to receive notice of the acceptance of
Original Senior Debentures for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Original Senior Debentures nor shall any of them incur any liability for failure
to give any such notice.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Original Senior Debentures have been lost, destroyed or stolen, the
Holder should promptly notify the Exchange Agent. The Holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
13. SECURITY TRANSFER TAXES. Holders who tender their Original Senior
Debentures for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, Exchange Senior Debentures are to be
delivered to, or are to be issued in the name of, any person other than the
registered Holder of the Original Senior Debentures tendered, or if a transfer
tax is imposed for any reason other than the exchange of Original Senior
Debentures in connection with the Exchange Offer, then the amount of any such
transfer tax (whether imposed on the registered holder or any other persons)
will be payable by the tendering Holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted with this Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendering Holder.
IMPORTANT: BOOK-ENTRY CONFIRMATION OR THIS LETTER OF
TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE
EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE
-12-
<PAGE> 14
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 9)
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK
- ---------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX TIN: ______
FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING SOCIAL SECURITY NUMBER OR
DEPARTMENT OF THE TREASURY BELOW: EMPLOYER
INTERNAL REVENUE SERVICE IDENTIFICATION NUMBER
- ---------------------------------------------------------------------------------------------------------
PART 2 -- TIN Applied For [ ]
---------------------------------------------------------------------------
CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) The number shown on this form is my correct taxpayer identification
number (or I am waiting for a number to be issued to me).
(2) I am not subject to backup withholding either because (i) I am exempt
from backup withholding, (ii) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (iii) the
IRS has notified me that I am no longer subject to backup withholding,
and
PAYER'S REQUEST FOR TAXPAYER (3) any other information provided on this form is true and correct.
IDENTIFICATION NUMBER ("TIN")
AND CERTIFICATION Signature: Dated:
- ---------------------------------------------------------------------------------------------------------
You must cross out item 2(iii) in Part (2) above if you have been notified by the IRS that you are
subject to backup withholding because of underreporting interest or dividends on your tax return and you
have not been notified by the IRS that you are no longer subject to backup withholding.
- ---------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO
THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART 2 OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (2) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of payment, 31% of all
payments made to me on account of the Exchange Senior Debentures shall be
retained until I provide a taxpayer identification number to the Exchange Agent
and that, if I do not provide my taxpayer identification number within 60 days,
such retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and 31% of all reportable payments made to me thereafter will
be withheld and remitted to the Internal Revenue Service until I provide a
taxpayer identification number.
Signature(s): ____________________________________________________ Dated:
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FIRST PALM BEACH BANCORP, INC.
OFFER TO EXCHANGE ITS
SERIES B 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Company's (as defined below) Series A 10.35% Senior
Debentures (the "Original Senior Debentures") are not immediately available,
(ii) Original Senior Debentures, the Letter of Transmittal and all other
required documents cannot be delivered to The Bank of New York (the "Exchange
Agent") on or prior to the Expiration Date (as defined in the Prospectus
referred to below), or (iii) the procedures for delivery by book-entry transfer
cannot be completed on a timely basis. This Notice of Guaranteed Delivery may be
delivered by hand, overnight courier or mail, or transmitted by facsimile
transmission, to the Exchange Agent. See "The Exchange Offer -- Procedures for
Tendering Original Senior Debentures" in the Prospectus. In addition, in order
to utilize the guaranteed delivery procedure to tender Original Senior
Debentures pursuant to the Exchange Offer, a completed, signed and dated Letter
of Transmittal relating to the Original Senior Debentures (or facsimile thereof)
must also be received by the Exchange Agent on or prior to the Expiration Date.
Capitalized terms not defined herein have the meanings assigned to them in the
Prospectus.
The Exchange Agent For The Exchange Offer Is:
THE BANK OF NEW YORK
By Registered or Certified Mail:
The Bank of New York
101 Barclay Street, 7E
New York, New York 10286
Attention: Reorganization Section
(name) ________________
Facsimile Transmissions:
(Eligible Institutions Only)
(212) 571-3080
To Confirm by telephone or
for Information:
(212) 815-6337
By Hand or Overnight Delivery:
The Bank of New York
101 Barclay Street
Corporate Trust Services Window
Ground Level
New York, New York 10286
Attention: Reorganization Section
(name) ________________
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to First Palm Beach Bancorp, Inc., a
corporation organized under the laws of the State of Delaware, upon the terms
and subject to the conditions set forth in the Prospectus dated ,
1997 (as the same may be amended or supplemented from time to time, the
"Prospectus"), and the related Letter of Transmittal (which together constitute
the "Exchange Offer"), receipt of which is hereby acknowledged, the aggregate
principal amount of Original Senior Debentures set forth below pursuant to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer -- Procedures for Tendering Original Senior Debentures."
Aggregate Principal Amount:(1) $
Name(s) of Registered Holder(s):
Certificate No.(s) (if available):
Total Principal Amount Represented by Original Senior Debentures Certificate(s):
$
If Original Senior Debentures will be tendered by book-entry transfer, provide
the following information:
DTC Account Number:
- ---------------
(1) Must be in denominations of a principal amount of $1,000 and any integral
multiple thereof, and not less than $100,000 aggregate principal amount.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the
undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
PLEASE SIGN HERE
X
SIGNATURE(S) OF OWNER(S) OR AUTHORIZED SIGNATORY
Dated:
Area Code and Telephone Number:
Must be signed by the holder(s) of the Original Senior Debentures as their
name(s) appear(s) on certificates for Original Senior Debentures or on a
security position listing, or by person(s) authorized to become registered
holder(s) by endorsement and documents transmitted with this Notice of
Guaranteed Delivery. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below.
Please print name(s) and address(es).
Name(s):
Capacity:
Address(es):
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker or government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Original
Senior Debentures tendered hereby in proper form for transfer, or confirmation
of the book-entry transfer of such Original Senior Debentures to the Exchange
Agent's account at The Depository Trust Company ("DTC"), pursuant to the
procedures for book-entry transfer set forth in the Prospectus, in either case
together with one or more properly completed and duly executed Letter(s) of
Transmittal (or facsimile thereof) and any other required documents within three
business days after the date of execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal and the Original Senior Debentures tendered hereby to the Exchange
Agent within the time period set forth above and that failure to do so could
result in a financial loss to the undersigned.
(Please Type or Print)
Name of Firm:
Address:
Zip Code:
Area Code and Telephone No.:
Authorized Signature:
Title:
Dated:
NOTE: DO NOT SEND CERTIFICATES FOR ORIGINAL SENIOR DEBENTURES WITH THIS FORM.
CERTIFICATES FOR ORIGINAL SENIOR DEBENTURES SHOULD ONLY BE SENT WITH YOUR
LETTER OF TRANSMITTAL.
<PAGE> 1
EXHIBIT 99.3
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10005
Attention: Corporate Trust
Trustee Administration
Ladies and Gentlemen:
First Palm Beach Bancorp, Inc., a corporation formed under the laws of the
State of Delaware (the "Company") proposes to make an offer (the "Exchange
Offer") to exchange its Series B 10.35% Senior Debentures (Principal Amount
$1,000 per Senior Debenture) (the "Exchange Senior Debentures") for its Series A
10.35% Senior Debentures (Principal Amount $1,000 per Senior Debenture) (the
"Original Senior Debentures"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus, dated , 1997
(the "Prospectus"), to be distributed to all record holders of the Original
Senior Debentures. The Original Senior Debentures and the Exchange Senior
Debentures are collectively referred to herein as the "Senior Debentures."
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
, 1997. The Letter of Transmittal accompanying the Prospectus (or in
the case of book entry securities, the ATOP system) is to be used by the holders
of the Original Senior Debentures to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Original
Senior Debentures tendered in connection therewith and (ii) the book-entry
transfer of Senior Debentures to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
, 1997 or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time by giving oral (to be confirmed in writing)
or written notice to you before 9:00 A.M., New York City time, on the business
day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Original Senior Debentures not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer -- Conditions to the Exchange Offer." The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance of Original Senior Debentures to you promptly after any amendment,
termination or nonacceptance.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The
Exchange Offer" or as specifically set forth herein; provided, however,
that in no way will your general duty to act in good faith be discharged by
the foregoing.
2. You will establish an account with respect to the Original Senior
Debentures at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days
after the date of the Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's system may make
book-entry delivery of the Original Senior Debentures by causing the
Book-Entry Transfer Facility to transfer such Original Senior Debentures
into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Original Senior Debentures (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the
Original Senior Debentures to ascertain whether: (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the
Original Senior Debentures have otherwise been properly tendered. In each
case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Original
Senior Debentures are not in proper form for transfer or some other
irregularity in connection with the
<PAGE> 2
acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such irregularity to
be corrected.
4. With the approval of any person designated in writing by the
Company (a "Designated Officer") (such approval, if given orally, to be
confirmed in writing) or any other party designated by any such Designated
Officer in writing, you are authorized to waive any irregularities in
connection with any tender of Original Senior Debentures pursuant to the
Exchange Offer.
5. Tenders of Original Senior Debentures may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned
"The Exchange Offer -- Procedures for Tendering Original Senior
Debentures," and Original Senior Debentures shall be considered properly
tendered to you only when tendered in accordance with the procedures set
forth therein.
Notwithstanding the provisions of this paragraph 5, Original Senior
Debentures which any Designated Officer of the Company shall approve as
having been properly tendered shall be considered to be properly tendered
(such approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Original Senior
Debentures received subsequent to the Expiration Date and accept their
instructions with respect to disposition of such Original Senior
Debentures.
7. You shall accept tenders:
(a) in cases where the Original Senior Debentures are registered in
two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of such person's authority so to act is
submitted; and
(c) from persons other than the registered holder of Original
Senior Debentures provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Senior Debentures where
so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Original Senior Debentures to the transfer agent for
split-up and return any untendered Original Senior Debentures to the holder
(or such other person as may be designated in the Letter of Transmittal) as
promptly as practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally,
to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Original Senior Debentures properly tendered and
you, on behalf of the Company, will exchange such Original Senior
Debentures for Exchange Senior Debentures and cause such Original Senior
Debentures to be canceled. Delivery of Exchange Senior Debentures will be
made on behalf of the Company by you at the rate of $1,000 principal amount
of Exchange Senior Debentures for each $1,000 principal amount of the
corresponding series of Original Senior Debentures tendered promptly after
notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Original Senior Debentures by the Company; provided,
however, that in all cases, Original Senior Debentures tendered pursuant to
the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Original Senior Debentures (or confirmation of
book-entry transfer into your account at the Book-Entry Transfer Facility),
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees and any other required
documents. You shall issue Exchange Senior Debentures only in denominations
of $1,000 or any integral multiple thereof. Original Senior Debentures may
be tendered in whole or in part in denominations of $100,000 and integral
multiples of $1,000 in excess thereof, provided that if any Original Senior
Debentures are tendered for exchange in part, the untendered principal
amount thereof must be $100,000 or any integral multiple of $1,000 in
excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Original Senior Debentures
tendered pursuant to the Exchange Offer may be withdrawn at any time on or
prior to the Expiration Date.
10. The Company shall not be required to exchange any Original Senior
Debentures tendered if any of the conditions set forth in the Exchange
Offer are not met. Notice of any decision by the Company not to exchange
any
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<PAGE> 3
Original Senior Debentures tendered shall be given orally (and confirmed in
writing) or in writing by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Original Senior Debentures tendered because
of an invalid tender, the occurrence of certain other events set forth in
the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer" or otherwise, you shall promptly after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
Original Senior Debentures (or effect appropriate book-entry transfer),
together with any related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited
them.
12. All certificates for reissued Original Senior Debentures,
unaccepted Original Senior Debentures or for Exchange Senior Debentures
shall be forwarded by (a) first-class certified mail, return receipt
requested, under a blanket surety bond protecting you and the Company from
loss or liability arising out of the non-receipt or non-delivery of such
certificates, (b) by registered mail insured separately for the replacement
value of each of such certificates, or (c) by appropriate book-entry
transfer.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other
persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth in the section of the Prospectus captioned "The
Exchange Offer," the Letter of Transmittal or herein or as may be
subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the Original Senior Debentures represented
thereby deposited with you pursuant to the Exchange Offer, and will not
be required to and will make no representation as to the validity, value
or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper
party or parties;
(e) may reasonably act upon any tender, statement, request,
agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which
you shall in good faith believe to be genuine or to have been signed or
represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any Designated Officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
(h) shall not advise any person tendering Original Senior
Debentures pursuant to the Exchange Offer as to the wisdom of making
such tender or as to the market value or decline or appreciation in
market value of any Original Senior Debentures.
15. You shall take such action as may from time to time be requested
by the Company or its counsel or any Designated Officer of the Company (and
such other action as you may reasonably deem appropriate) to furnish copies
of the Prospectus, Letter of Transmittal and the Notice of Guaranteed
Delivery (as defined in the Prospectus) or such other forms as may be
approved from time to time by the Company to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such
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<PAGE> 4
information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with
copies of such documents at your request. All other requests for
information relating to the Exchange Offer shall be directed to the
Company, Attention: .
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to of the Company,
and such other person or persons as the Company may request, daily (and
more frequently during the week immediately preceding the Expiration Date
and if otherwise requested) up to and including the Expiration Date, as to
the number of Original Senior Debentures which have been tendered pursuant
to the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons upon oral request made from time to time on or prior to
the Expiration Date of such other information as it or such person
reasonably requests. Such cooperation shall include, without limitation,
the granting by you to the Company and such person as the Company may
request of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange Offer. You
shall prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Original Senior Debentures tendered, and the
aggregate principal amount of Original Senior Debentures accepted and
deliver said list to the Company promptly after the Expiration Date.
17. Any Letters of Transmittal and Notices of Guaranteed Delivery
which are received by the Exchange Agent shall be stamped by you as to the
date and the time of receipt thereof and shall be preserved by you for a
period of time at least equal to the period of time you preserve other
records pertaining to the transfer of securities. You shall dispose of
unused Letters of Transmittal and other surplus materials by returning them
to the Company at the address set forth below for notices.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with
you for the payment of transfer taxes by reasons of amounts, if any,
borrowed by the Company, or any of its subsidiaries or affiliates pursuant
to any loan or credit agreement with you or for compensation owed to you
hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them.
Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be controlled by this
Agreement.
21.(a) The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable attorneys' fees and
expenses, arising out of or in connection with any act, omission, delay or
refusal made by you in reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid, genuine and
sufficient and in accepting any tender or effecting any transfer of
Original Senior Debentures reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders
or effect any transfer of Original Senior Debentures; provided, however,
that the Company shall not be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of your
gross negligence or willful misconduct. In no case shall the Company be
liable under this indemnity with respect to any claim against you unless
the Company shall be notified by you, by letter or cable or by facsimile
confirmed by letter, of the written assertion of a claim against you or of
any other action commenced against you, promptly after you shall have
received any such written assertion or notice of commencement of action.
The Company shall be entitled to participate at its own expense in the
defense of any such claim or other action, and, if the Company so elects,
the Company may assume the defense of any suit brought to enforce any such
claim. In the event that the Company shall assume the defense of any such
suit or threatened action in respect of which indemnification may be sought
hereunder, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter
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<PAGE> 5
retained by you so long as you consent to the Company's retention of
counsel, which consent may not be unreasonably withheld; provided that the
Company shall not be entitled to assume the defense of any such action if
the named parties to such action include both the Company and you and
representation of both parties by the same legal counsel would, in the
written opinion of counsel to you, be inappropriate due to actual or
potential conflicting interests between you and the Company. It is
understood that the Company shall not be liable under this paragraph for
the fees and expenses of more than one legal counsel for you. In the event
that the Company shall assume the defense of any such suit, the Company
shall not thereafter be liable for the fees and expenses of any counsel
retained by you.
(b) You agree that, without the prior written consent of the Company
(which consent shall not be unreasonably withheld), you will not settle,
compromise or consent to the entry of any pending or threatened claim,
action or proceeding in respect of which indemnification could be sought in
accordance with the indemnification provisions of this Agreement (whether
or not you or the Company or any of its trustees, or controlling persons is
an actual or potential party to such claim, action or proceeding), unless
such settlement, compromise or consent includes an unconditional release of
the Company and its trustees and controlling persons from all liability
arising out of such claim, action or proceeding.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Company understands that you are required in
certain instances to deduct 31% with respect to interest paid on the
Exchange Senior Debentures and proceeds from the sale, exchange, redemption
or retirement of the Exchange Senior Debentures from holders who have not
supplied their correct Taxpayer Identification Number or required
certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
23. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Original Senior Debentures and, upon
receipt of written approval from the Company, you shall deliver or cause to
be delivered, in a timely manner to each governmental authority to which
any transfer taxes are payable in respect of the exchange of Original
Senior Debentures, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Original Senior
Debentures; provided, however, that you shall reimburse the Company for
amounts refunded to you in respect of your payment of any such transfer
taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely within
such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
26. In case any provision of this Agreement 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.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
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<PAGE> 6
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed
to it, at its address or telecopy number set forth below:
<TABLE>
<S> <C>
If to the Company: First Palm Beach Bancorp, Inc.
450 S. Australian Avenue
West Palm Beach, Florida 33401
Facsimile: (561) 650-2336
Attention: Louis O. Davis, Jr.
President and Chief Executive Officer
If to the Exchange Agent: The Bank of New York
101 Barclay Street, 21 West
New York, NY 10283
Telephone: (212) ________________
Facsimile: (212) _________________
Attention: Corporate Company
Trustee Administration
</TABLE>
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Securities, funds or property
then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
FIRST PALM BEACH BANCORP, INC.
By:
Name:
Title:
ACCEPTED AS THE DATE FIRST ABOVE WRITTEN:
THE BANK OF NEW YORK, as Exchange Agent
By:
Name:
Title:
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<PAGE> 7
THE BANK OF NEW YORK
FEE SCHEDULE
EXCHANGE AGENT SERVICES
FIRST PALM BEACH BANCORP, INC.
I. Exchange Agency
A fee for the receipt of exchanged 10.35% Senior Debentures of First Palm
Beach Bancorp, Inc. will be charged at $ per letter of transmittal. The
total charge will be subject to a minimum of $ and maximum of $ .
This fee covers examination and execution of all required documentation,
receipt of transmittal letters, reporting as required to the Company and
communications with DTC.
II. Miscellaneous
Fees for services not specifically covered in this schedule will be
assessed in amounts commensurate with the services rendered.
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<PAGE> 1
EXHIBIT 99.4
FIRST PALM BEACH BANCORP, INC.
OFFER TO EXCHANGE ITS
SERIES B 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
First Palm Beach Bancorp, Inc. (the "Company") is offering, upon and
subject to the terms and conditions set forth in a prospectus dated
, 1997 (the "Prospectus"), and the enclosed letter of transmittal
(the "Letter of Transmittal"), to exchange (the "Exchange Offer") the Company's
Series B 10.35% Senior Debentures (the "Exchange Senior Debentures") for its
outstanding Series A 10.35% Senior Debentures (the "Original Senior
Debentures"). The Exchange Offer is being made in order to satisfy certain
obligations of the Company contained in the Registration Rights Agreement, dated
June 30, 1997, between the Company and the initial purchaser referred to
therein.
We are requesting that you contact your clients for whom you hold Original
Senior Debentures regarding the Exchange Offer. For your information and for
forwarding to your clients for whom you hold Original Senior Debentures
registered in your name or in the name of your nominee, or who hold Original
Senior Debentures registered in their own names, we are enclosing the following
documents:
1. Prospectus dated , 1997;
2. The Letter of Transmittal for your use and for the information (or the
use, where relevant) of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer
if certificates for Original Senior Debentures are not immediately available or
time will not permit all required documents to reach The Bank of New York, the
Exchange Agent, prior to the Expiration Date (as defined below) or if the
procedure for book-entry transfer cannot be completed on a timely basis;
4. A form of letter which may be sent to your clients for whose account you
hold Original Senior Debentures registered in your name or the name of your
nominee, with space provided for obtaining such clients' instructions with
regard to the Exchange Offer;
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
6. Return envelopes addressed to the Exchange Agent for Original Senior
Debentures.
Your prompt action is requested. The Exchange Offer will expire at 5:00
p.m., New York City time, on , 1997, unless extended by the
Company (the "Expiration Date"). The Original Senior Debentures tendered
pursuant to the Exchange Offer may be withdrawn at any time before the
Expiration Date.
To participate in the Exchange Offer, a duly executed and properly
completed Letter of Transmittal (or facsimile thereof or an Agent's Message (as
defined in the Prospectus) in lieu thereof), with any required signature
guarantees and any other required documents, should be sent to the Exchange
Agent and certificates representing the Original Senior Debentures should be
delivered to the Exchange Agent, all in accordance with the instructions set
forth in the Letter of Transmittal and the Prospectus.
<PAGE> 2
If holders of Original Senior Debentures wish to tender, but it is
impracticable for them to forward their certificates for Original Senior
Debentures prior to the expiration of the Exchange Offer or to comply with the
book-entry transfer procedures on a timely basis, a tender may be effected by
following the guaranteed delivery procedures described in the Prospectus under
"The Exchange Offer -- Guaranteed Delivery Procedures."
The Company will, upon request, reimburse brokers, dealers, commercial
banks and trust companies for reasonable and necessary costs and expenses
incurred by them in forwarding the Prospectus and the related documents to the
beneficial owners of Original Senior Debentures held by them as nominee or in a
fiduciary capacity. The Company will pay or cause to be paid all stock transfer
taxes applicable to the exchange of Original Senior Debentures pursuant to the
Exchange Offer, except as set forth in Instruction 13 of the Letter of
Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to The Bank
of New York, the Exchange Agent for the Original Senior Debentures, at its
address and telephone number set forth on the front of the Letter of
Transmittal.
Very truly yours,
FIRST PALM BEACH BANCORP, INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF
THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN
THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
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<PAGE> 1
EXHIBIT 99.5
FIRST PALM BEACH BANCORP, INC.
OFFER TO EXCHANGE ITS
SERIES B 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A 10.35% SENIOR DEBENTURES DUE 2002
(PRINCIPAL AMOUNT $1,000 PER SENIOR DEBENTURE)
To Our Clients:
Enclosed for your consideration is a prospectus dated ,
1997 (the "Prospectus"), and the related letter of transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of First Palm Beach
Bancorp, Inc. (the "Company") to exchange the Company's Series B 10.35% Senior
Debentures (the "Exchange Senior Debentures") for its outstanding Series A
10.35% Senior Debentures (the "Original Senior Debentures"), upon the terms and
subject to the conditions described in the Prospectus. The Exchange Offer is
being made in order to satisfy certain obligations of the Company contained in
the Registration Rights Agreement dated June 30, 1997, between the Company and
the initial purchaser referred to therein.
This material is being forwarded to you as the beneficial owner of the
Original Senior Debentures carried by us in your account but not registered in
your name. A tender of such Original Senior Debentures may only be made by us as
the holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on
your behalf the Original Senior Debentures held by us for your account, pursuant
to the terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Original Senior Debentures on your behalf in
accordance with the provisions of the Exchange Offer. The Exchange Offer will
expire at 5:00 p.m., New York City time, on , 1997, unless
extended by the Company. Any Original Senior Debentures tendered pursuant to the
Exchange Offer may be withdrawn at any time before the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Original Senior Debentures.
2. The Exchange Offer is subject to certain conditions set forth in
the Prospectus in the section captioned "The Exchange Offer -- Conditions
to the Exchange Offer."
3. Any transfer taxes incident to the transfer of Original Senior
Debentures from the holder to the Company will be paid by the Company,
except as otherwise provided in the Instructions in the Letter of
Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New York City time, on
, 1997, unless extended by the Company.
If you wish to have us tender your Original Senior Debentures, please so
instruct us by completing, executing and returning to us the instruction form on
the back of this letter. The Letter of Transmittal is furnished to you for
information only and may not be used directly by you to tender Original Senior
Debentures.
<PAGE> 2
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer made by First Palm
Beach Bancorp, Inc. with respect to its Original Senior Debentures.
This will instruct you to tender the Original Senior Debentures held by you
for the account of the undersigned, upon and subject to the terms and conditions
set forth in the Prospectus and the related Letter of Transmittal.
Please tender the aggregate Principal Amount of Original Senior Debentures
held by you for my account as indicated below:
- --------------------------------------------------------------------------------
(Aggregate Principal Amount to be Tendered)
[ ] Please do not tender any Original Senior Debentures held by you for my
account.
Dated:
Signature(s):
Please print name(s):
Address(es):
Area Code and Telephone Number(s):
Tax Identification or Social Security Number(s):
None of the Original Senior Debentures held by us for your account will be
tendered unless we receive written instructions from you to do so. Unless a
specific contrary instruction is given in the space provided, your signature(s)
hereon shall constitute an instruction to us to tender all the Original Senior
Debentures held by us for your account.
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