TRUST AGREEMENT
OF
BANKUNITED CAPITAL II
This TRUST AGREEMENT, dated as of May 19, 1997, is made among
BankUnited Financial Corporation, a Florida corporation, as "Depositor" and
Xxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxx as "Administrative Trustees" and The Bank
of New York (Delaware) as "Trustee" (the Trustee and the Administrative Trustees
together, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as BankUnited Capital II, in
which name the Trustees, or the Depositor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and xxx and be
sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $100. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 DEL. C. ss. 3801 ET SEQ. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustee (or Trustees, as applicable at such
time) are hereby empowered to enter into an amended and restated Trust
Agreement, satisfactory to each such party, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities of the Trust. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustee (or Trustees,
as may be applicable) shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Administrative Trustees hereby authorize the
Depositor, as the sponsor of the Trust and at its sole discretion, (i) to file
with the Securities and Exchange Commission (the "Commission") and to execute,
in the case of the 1933 Act Registration Statement (as herein defined) and 1934
Act Registration Statement (as herein defined), on behalf of the Trust, (a) a
Registration Statement, on an appropriate form (the "1993 Registration
Statement") (including pre-effective or post-effective amendments to such
Registration Statement), relating to the registration under the Securities Act
of 1933, as amended (the "1933 Act"), of the Preferred Securities of the Trust,
(b) any preliminary prospectus or prospectus supplement thereto relating to the
Preferred Securities required to be filed under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with The Nasdaq Stock Market, Inc. or with any other exchange or trading
facility located in the United States of America or abroad (each, an "Exchange")
and execute on behalf of the Trust a registration or listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
Securities to be registered or listed on any Exchange; (iii) to file and execute
on behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute on behalf of the
Trust such underwriting agreements with the Depositor and one or more
underwriters relating to the offering of the Preferred Securities as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (v) to
take or cause to be taken any and all acts that the Depositor, in its sole
discretion, may deem necessary or advisable to carry out the purpose of the
Trust. In the event that any filing referred to in clauses (i) - (iii) above is
required, by the rules and regulations of any Exchange, state securities or Blue
Sky laws, or any applicable federal or state laws or regulations, to be executed
on behalf of the Trust by a Trustee, the Depositor and any Trustee appointed
pursuant to Section 6 hereof are hereby authorized to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty days' prior notice to the Depositor
PROVIDED, HOWEVER, such notice shall not be required if it is waived by the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
BANKUNITED FINANCIAL CORPORATION,
as Depositor
By:_____________________________________
Xxxxxx X. Xxxxx,
Executive Vice President and Chief
Financial Officer
THE BANK OF NEW YORK (DELAWARE)
as Trustee
By:_____________________________________
Name:
Title:
XXXXX X. XXXXXXXXX,
as Administrative Trustee
________________________________________
XXXXX X. XXXXXX,
as Administrative Trustee
________________________________________
