EXHIBIT 4.11
AGENCY AGREEMENT
AGENCY AGREEMENT (the "Agreement") dated as of January ____, 2005, by and
among FNB FINANCIAL SERVICES, LP ("FNB Financial Services"), F.N.B. CORPORATION,
as Guarantor ("FNB") and REGENCY FINANCE COMPANY, as Agent (the "Agent").
BACKGROUND
Promptly upon the execution and delivery hereof, FNB Financial Services
plans to register, under the Securities Act of 1933, as amended (the "1933
Act"), up to Three Hundred Fifty Million Dollars ($350,000,000.00) aggregate
principal amount of its Subordinated Term Notes (the "New Term Notes") and
Subordinated Daily Notes (the "New Daily Notes") and Special Subordinated Daily
Notes (the "New Special Daily Notes and, together with the New Term Notes and
the New Daily Notes are sometimes collectively referred to in this Agreement as
the "New Notes"), to be guaranteed by FNB, and issued under and pursuant to the
Indenture dated as of January ____, 2005 (the "New Indenture"), by and among
FNB Financial Services, FNB, as Guarantor, and X.X. Xxxxxx Trust Company,
National Association, as Trustee (the "Trustee"). The New Indenture permits,
among other things, the appointment of a paying agent for the purpose of
receiving amounts due from FNB Financial Services or FNB under, and making
payments due in respect to, New Notes issued under the New Indenture,
maintaining books with respect to the New Notes, acting as depository with
respect to certain funds to be established thereunder and undertaking certain
other duties described therein.
Under and subject to the terms and conditions hereof: (i) FNB Financial
Services desires to appoint the Agent, and the Agent desires to serve, as paying
agent for the New Notes (the "Paying Agent"); (ii) FNB Financial Services
desires to appoint the Agent, and the Agent desires to serve, as sales agent for
the New Notes (the "Sales Agent"); and (iii) FNB Financial Services and FNB
desire to appoint the Agent, and the Agent desires to serve, as exchange agent
(the "Exchange Agent") for the exchange of New Notes for outstanding
Subordinated Term Notes (the "FNB Term Notes") and outstanding Subordinated
Daily Notes (the "FNB Daily Notes") of FNB. The FNB Term Notes and FNB Daily
Notes are sometimes collectively referred to in this Agreement as the "FNB
Notes", and were issued under and pursuant to the Indenture, dated as of May 15,
1992, as amended, between FNB and X.X. Xxxxxx Trust Company, National
Association, successor trustee to Northern Central Bank, as trustee (the "FNB
Indenture" and together with the New Indenture, the "Indentures").
The terms and conditions of the exchange offer (the "Exchange Offer") as
currently contemplated are set forth in a prospectus, dated _________________,
2005 (as the same may be amended or supplemented from time to time, the
"Prospectus"), and the form of letter of transmittal accompanying the Prospectus
(as the same may be amended or supplemented from time to time, the "Letter of
Transmittal"). The Letter of Transmittal is to be used by the holders of FNB
Notes to accept the Exchange Offer, and contains instructions with respect to
the delivery of FNB Notes tendered in connection therewith. The Exchange Offer
expires at 5:00 p.m., New York City time, on December 31, 2005, or on such later
date or time to which FNB Financial Services may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus and the Letter of Transmittal, FNB
Financial Services expressly reserves the right to extend the Exchange Offer
from time to time by giving notice to the Agent before 9:00 a.m., New York City
time, on the Business Day following the previously scheduled Expiration Date.
In consideration of the premises and the mutual agreements hereinafter
contained, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
RULES OF INTERPRETATION
Section 1.1 General. Capitalized terms used in this Agreement which are
not defined herein shall have the meanings assigned to them in the New
Indenture, unless the context or use indicates another or different meaning or
intent. Definitions shall be equally applicable to both singular and plural
forms of any of the words and terms therein or herein defined. The words
"herein" and "hereof" and words of similar import, without reference to any
particular article, section or subsection, refer to this Agreement as a whole
rather than to any particular article, section or subsection hereof.
Section 1.2 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware excluding its
choice of law principles that would require the application of the laws of
another jurisdiction.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 FNB Financial Services Representations and Warranties. FNB
Financial Services hereby represents and warrants that it has full power and
authority to execute, deliver and perform its obligations under this Agreement,
the New Indenture, the New Notes and any other agreements entered into by it and
related to the New Notes.
Section 2.2 FNB Representations and Warranties. FNB hereby represents and
warrants that it has full power and authority to execute, deliver and perform
its obligations under this Agreement, the FNB Indenture, the New Indenture, the
FNB Notes, the New Notes and any other agreements entered into by it and related
to the FNB Notes and the New Notes.
Section 2.3 Agent Representations and Warranties. The Agent hereby
represents and warrants that: (i) it has full power and authority to execute,
deliver and perform its obligations under this Agreement; (ii) its officers and
employees participating in the Agent's performance of its Duties under this
Agreement will not be subject to any statutory disqualification from so acting
under applicable federal and state securities laws, and cannot be or have been
associated with a securities broker-dealer for the 12-month period immediately
preceding the execution of this Agreement; and (iii) it has taken all actions
and made all registrations necessary and appropriate under all applicable
Federal and state securities laws to permit it to carry out its
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duties and obligations as Paying Agent, Sales Agent and Exchange Agent in
connection with the offer and sale of the New Notes and the Exchange Offer.
ARTICLE III
DUTIES OF THE AGENT
Section 3.1 Appointment as Paying Agent; Acceptance of New Paying Agent
Duties. As provided in the New Indenture, FNB Financial Services hereby appoints
the Agent as Paying Agent for the New Notes and any other Securities issued
under the New Indenture. The Agent acknowledges that it has received and
reviewed the New Indenture and hereby accepts such appointment and agrees to
perform all of the duties and obligations of the Paying Agent (the "New Paying
Agent Duties") pursuant to the New Indenture, subject to the terms and
conditions contained in this Agreement. The Paying Agent shall:
(1) give the Trustee notice of any default by FNB Financial Services or
FNB (or other obligor upon the New Notes) in the making of any payment of
principal or interest on the New Notes; and
(2) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by the Paying Agent.
Section 3.2 Appointment as Sales Agent; Acceptance of New Sales Duties.
Subject to the limitations of the Securities Exchange Act of 1934, as amended,
FNB Financial Services hereby appoint the Agent as Sales Agent with respect to
the offer and sale of the New Notes and any other Securities issued under the
New Indenture (the "New Offer"). In carrying out its function as Sales Agent,
the Agent shall be strictly limited to performing the functions, and shall have
the duties and obligations, set forth in the Prospectus under the heading "Plan
of Distribution" (the "New Sales Duties" and, together with the New Paying Agent
Duties, the "New Note Duties"). The Sales Agent shall take such actions as may
be necessary to cause the representations set forth in Section 2.3(ii) hereof to
be true and correct at all times during the term of this Agreement.
Section 3.3 Appointment as Exchange Agent; Acceptance of Exchange Agent
Duties. FNB Financial Services and FNB hereby appoint the Agent as Exchange
Agent for the Exchange Offer. The Agent acknowledges that it has received and
reviewed the Prospectus and Letter of Transmittal, and hereby accepts such
appointment and agrees to perform all of the duties and obligations of the
Exchange Agent as specified in Article IV of this Agreement (the "Exchange Agent
Duties," and together with the New Note Duties, the "New Duties"), subject to
the terms and conditions contained in this Agreement.
ARTICLE IV
EXCHANGE AGENT DUTIES
Section 4.1 Exchange Agent Instructions. In carrying out its Exchange
Agent Duties, the Agent is to act in accordance with the following instructions:
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(1) The Agent will perform such duties, and only such duties, as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer," the Letter of Transmittal or this Agreement.
(2) Letters of Transmittal received by the Agent shall be stamped by the
Agent as to the date of receipt and shall be preserved by the Agent for a period
of time at least equal to the period of time the Agent preserves other records
pertaining to the transfer of the New Notes and the FNB Notes (together, the
"Securities"). The Agent will examine each of the Letters of Transmittal and FNB
Notes and any other documents received by it from holders of FNB Notes, to
ascertain whether: (i) on their face 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 FNB Notes 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 FNB Notes are
not in proper form for transfer or some other irregularity in connection with
the acceptance of the Exchange Offer exists, the Agent will endeavor to inform
the tendering holder 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.
(3) Tenders of FNB Notes may be made only as set forth in the section of
the Prospectus captioned "The Exchange Offer - Procedures for Tendering FNB
Notes," and pursuant to properly completed and executed Letters of Transmittal,
and FNB Notes shall be considered properly tendered only when tendered in
accordance with the procedures set forth therein. With the approval of an
authorized officer of Regency Consumer Financial Services Inc., the general
partner of FNB Financial Services (the "General Partner"), an authorized officer
of FNB or any other person designated in writing by FNB Financial Services or
FNB (each a "Designated Officer"), the Agent is authorized to waive any
irregularities in connection with any tender of FNB Notes pursuant to the
Exchange Offer. Notwithstanding the provisions of this paragraph, FNB Notes that
any Designated Officer shall approve as having been properly tendered shall be
considered to be properly tendered.
(4) If requested by FNB Financial Services or FNB, the Agent shall advise
by facsimile transmission or telephone, and promptly thereafter confirm in
writing to such person or persons as FNB Financial Services and FNB may request,
daily (and more frequently during the week immediately preceding the Expiration
Date), as to the aggregate principal amounts by series, maturities and account
numbers, of FNB Notes which have been tendered pursuant to the Exchange Offer
and the items received by the Agent pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received and items
improperly received. In addition, the Agent will also inform, and cooperate in
making available to FNB Financial Services and FNB, upon oral request made from
time to time on or prior to the Expiration Date, such other information as FNB
Financial Services or FNB reasonably requests. Such cooperation shall include,
without limitation, the granting by the Agent to FNB Financial Services and FNB,
and any person as FNB Financial Services and FNB may reasonably request, of
access to those persons on the Agent's staff who are responsible for receiving
tenders, in order to ensure that immediately prior to the Expiration Date, FNB
Financial Services and FNB shall have received information in sufficient detail
to enable them to decide whether or not to extend the Exchange Offer. The Agent
shall prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount by series, maturities and account
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numbers, of FNB Notes tendered, and the aggregate principal amount by series,
maturities and account numbers, of FNB Notes accepted, and deliver said lists to
FNB Financial Services and FNB promptly after the Expiration Date.
(5) Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, FNB Financial Services will immediately notify the Agent of its
acceptance of, and will promptly exchange all, FNB Notes properly tendered for
corresponding New Notes. The Agent, on behalf of FNB Financial Services and FNB,
will exchange such FNB Notes for New Notes provided to the Agent by or on behalf
of FNB Financial Services, and cause such FNB Notes to be canceled. Each New
Note delivered on behalf of FNB Financial Services by the Agent to a tendering
holder of an FNB Note shall be in the exact principal amount and of the
particular series and both the original and remaining maturities of New Note
directly corresponding to the principal amount and series and both the original
and remaining maturities of FNB Note so tendered; provided, however, that in all
cases, FNB Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by the Agent of such FNB Notes, a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), and any other
required documents.
(6) Tenders pursuant to the Exchange Offer are irrevocable, subject to the
terms and upon the conditions set forth in the Prospectus and the Letter of
Transmittal. The Agent shall advise FNB Financial Services and FNB with respect
to any FNB Notes received subsequent to the Expiration Date, and accept their
instructions with respect to disposition of such FNB Notes.
(7) If, pursuant to the Exchange Offer, FNB Financial Services does not
accept for exchange all or part of the FNB Notes 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, the Agent shall promptly return those FNB Notes not accepted for
exchange, together with any related required documents and the Letters of
Transmittal relating thereto in the Agent's possession, to the FNB Note holders
who tendered them. All unaccepted FNB Notes, and New Notes issued in exchange
for FNB Notes, shall be forwarded by first class, certified mail, return receipt
requested or other appropriate means as determined by the Agent in its
discretion.
Section 4.2 Agent Responsibilities. The Agent:
(1) shall have no duties as Exchange Agent other than those specifically
set forth in the section of the Prospectus captioned "The Exchange Offer," the
Letter of Transmittal or this Agreement, or as may be subsequently agreed to in
writing by the Agent and FNB Financial Services or FNB;
(2) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the Securities deposited with the Agent or issued 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, the Letter of Transmittal
or any other disclosure materials delivered in connection therewith;
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(3) shall not be obligated to take any legal action hereunder, unless it
shall have been furnished with an indemnity satisfactory to it;
(4) may rely on, and be fully authorized and protected in acting or
failing to act, upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission or other document or security delivered
to the Agent and believed by the Agent to be genuine and to have been signed by
the proper party or parties;
(5) may reasonably act upon any tender, statement, request, agreement or
other instrument whatsoever not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and accuracy of
any information contained therein, which the Agent shall in good faith believe
to be genuine or to have been signed or represented by a proper person or
persons, unless otherwise properly waived;
(6) may rely on, and shall be authorized and protected in acting or
failing to act upon, the written, telephonic and oral instructions with respect
to any matter relating to the Agent acting under this Agreement (or
supplementing or qualifying any such actions) of officers of either the General
Partner or of FNB;
(7) may consult with counsel satisfactory to the Agent, including counsel
for FNB Financial Services or FNB, with respect to any questions relating to the
Agent's 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 the Agent hereunder in good faith and
in accordance with the advice or opinion of such counsel, provided that the
Agent shall promptly notify FNB Financial Services and FNB of any action taken
or omitted by the Agent in reliance upon such advice or opinion; and
(8) shall not pay or offer any concessions, commissions or solicitation
fees to any broker, dealer, bank or other persons or engage or use any third
person to solicit tenders or sales of Securities.
ARTICLE V
EXPENSES; ABSENCE OF COMPENSATION; INDEMNIFICATION
Section 5.1 Payment of Fees and Expenses; Absence of Compensation. The
Agent shall be responsible for the payment all fees, charges and out-of-pocket
expenses incurred by FNB Financial Services and FNB in connection with the New
Offer and the Exchange Offer, and by the Agent in performing its New Duties;
provided, however, that the Agent may be reimbursed by FNB Financial Services or
FNB for such fees, charges and out-of-pocket expenses as FNB Financial Services
or FNB and the Agent may agree from time to time. The Agent shall not be
compensated for its services and the performance of the New Duties hereunder.
Section 5.2 Indemnification of Agent. FNB Financial Services and FNB shall
indemnify and hold harmless the Agent against any and all losses, claims,
damages, liabilities and expenses (or actions in respect thereof) that arise (i)
out of, or are based upon, any untrue statement or alleged untrue statement of
any material fact as set forth in the Prospectus, or (ii) out
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of an omission or alleged omission from the Prospectus of any statement or
information necessary to make the statements therein not misleading, and FNB
Financial Services and FNB shall further reimburse any legal or other expenses
reasonably incurred by the Agent in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
neither FNB Financial Services nor FNB will be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of
or-is based upon any untrue statement or alleged untrue statement made or
furnished in reliance upon and in conformity with written information furnished
by the Agent specifically for use therein; and provided, further, that this
indemnity agreement with respect to any untrue statement or omission in the
Prospectus shall not inure to the benefit of the Agent on account of any loss,
claim, damage or liability arising from the sale of New Notes by the Sales Agent
or the exchange of New Notes for FNB Notes to any person if a copy of the
Prospectus shall not have been sent or given by or on behalf of the Sales Agent
to such person at or prior to the written confirmation of the sale of New Notes
to such person or the exchange of New Notes for FNB Notes of such person. The
indemnity agreement contained in this Section will be in addition to any
liability which FNB Financial Services or FNB may otherwise have.
Section 5.3 Indemnification of FNB Financial Services and FNB. The Agent
shall indemnify and hold harmless FNB Financial Services and FNB against any and
all losses, claims, damages and liabilities arising out of (i) any written
information set forth in the Prospectus which was furnished by the Agent, (ii)
the failure of the Agent to deliver a copy of the Prospectus to a purchaser of
any of the New Notes for cash or through the exchange of FNB Notes for New Notes
at or prior to written confirmation of the sale of any of the New Notes to such
purchaser, (iii) the Agent's failure to comply with the "Blue Sky" laws of any
jurisdiction in which FNB Financial Services or FNB would be liable therefor or
(iv) the Agent's breach of any representation, warranty or covenant contained
herein.
ARTICLE VI
DUTIES OF FNB FINANCIAL SERVICES
Section 6.1 Preparation of Forms. FNB Financial Services shall timely
prepare and distribute to the Holders of the New Notes and the Internal Revenue
Service (the "IRS"), IRS Forms 1099 and such other forms and reports as may be
required pursuant to applicable law. All information necessary to prepare such
forms and reports which is held by the Agent shall be delivered to FNB Financial
Services in a timely fashion so as not to hinder FNB Financial Services in
meeting its obligations hereunder.
Section 6.2 Registration of New Notes; Distribution of Prospectus. FNB
Financial Services shall be responsible for registering the New Notes under all
applicable state and federal securities laws. Additionally, FNB Financial
Services shall deliver to the Sales Agent copies of the Prospectus, together
with any and all amendments or supplements thereto, for distribution by the
Sales Agent to prospective purchasers of the New Notes and holders of FNB Notes
considering the Exchange Offer.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Term of Agreement. This Agreement shall remain in full force
and effect until the earlier of (i) such time as the principal of and interest
on all New Notes outstanding under the New Indenture shall have been paid, and
(ii) the effective date of the resignation or removal of the Agent in accordance
with Section 7.4 hereof.
Section 7.2 Amendments.
(1) No amendment or modification of any provision of this Agreement shall
be effective unless the same shall be in writing and signed by all the parties
hereto.
(2) The parties agree that they will not amend any provision in the New
Indenture or any other agreement affecting, in any material respect, the duties
or rights of the Agent without the prior written consent of the Agent.
Section 7.3 Notices. Any notices, requests or other communications given
or made pursuant to the Indentures or any other agreement affecting the duties
or rights of the Agent shall be made as specified in the New Indenture. All such
notices, requests or other communications shall be directed to the Agent at its
administrative office located at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx
00000. The parties may, by notice given pursuant to this Section, designate any
different address to which subsequent communications shall be sent.
Section 7.4 Resignation and Removal. The Agent may resign from, and may be
removed from, the performance of all of, the New Sales Duties, the New Paying
Agent Duties and/or the Exchange Agent Duties upon 60 days written notice. No
such resignation or removal shall take effect until the acceptance of
appointment of a successor agent for such duties.
Section 7.5 Successors. Any corporation or association into which the
Agent may be converted or merged, or with which it may be consolidated, or any
corporation or association resulting from any such conversion, merger or
consolidation to which it is a party, shall be and become successor agent
hereunder invested with all of the rights, powers, trusts, duties and
obligations of the Agent hereunder, without the execution or filing of an
instrument or any further act.
Section 7.6 Action Due on Saturdays, Sundays and Holidays. If any date on
which a payment, notice or other action required by this Agreement or the New
Indenture falls on other than a Business Day, then that action or payment need
not be taken or made on such date, but may be taken or made on the next
succeeding Business Day on which the Agent is open for business with the same
force and effect as if made on such day.
Section 7.7 Conflicts; Interpretation. If there is any conflict between
provisions of this Agreement and provisions of the New Indenture, the provisions
of the New Indenture shall control. Subject to the foregoing, the Agent may
construe any ambiguous or inconsistent
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provision of this Agreement and any construction of a provision by the Agent
shall be binding upon FNB Financial Services and FNB.
Section 7.8 Headings. The headings in this Agreement are for purposes of
reference only and shall not in any way limit or otherwise affect the meaning or
interpretation of any of the terms hereof.
Section 7.9 Remedies. Unless otherwise specified herein, in the event that
any party breaches or violates any of the obligations contained in this
Agreement, each other party shall be entitled to exercise any right and seek any
remedy available to it either at law or in equity, including, without
limitation, damages and injunctive relief. The exercise of any right or the
seeking of any remedy shall not preclude the concurrent or subsequent exercise
of any other right or the seeking of any other remedy, and all rights and
remedies shall be cumulative.
Section 7.10 Entire Agreement; Benefit of the Agreement. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof, and any prior agreements or understandings between any of the
parties to this Agreement relating to such subject matter are hereby superceded
to the extent inconsistent with this Agreement; provided, however, that for
purposes of clarity, the Agency Agreement dated as of January 1, 1994 by and
between FNB and Regency Finance Company, as Agent, shall continue in full force
and effect except as modified by this Agreement. This Agreement is solely for
the benefit of the parties hereto and their successors and assigns, and no other
person shall acquire or have any rights under or by virtue hereof. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and respective permitted successors and assigns.
Section 7.11 No Implied Waivers. The rights of any party under any
provision of this Agreement shall not be affected by its prior failure to
require the performance by any other party under such provision or any other
provision of this Agreement, nor shall the waiver by any party of a breach of
any provision hereof constitute a waiver of any succeeding breach of the same or
any other provision or constitute a waiver of the provision of any other
provision itself or any other provision.
Section 7.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but both or all of
which, when taken together, shall constitute but one instrument, and shall
become effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto, shall be delivered to each of the
parties hereto.
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IN WITNESS WHEREOF, the Agent, FNB Financial Services and FNB have each
caused this Agreement to be duly executed in its name and on its behalf by its
duly authorized officer as of the date above written.
F.N.B. CORPORATION, FNB FINANCIAL SERVICES, LP
AS GUARANTOR
BY: REGENCY CONSUMER FINANCIAL
By: _________________________________ SERVICES INC., ITS GENERAL PARTNER
Name:
Title: By: ____________________________________
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: President
REGENCY FINANCE COMPANY,
AS AGENT
By: ____________________________________
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
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