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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 J.P. Morgan 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 J.P. Morgan 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
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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 A
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