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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
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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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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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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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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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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:
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
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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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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