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BANKUNITED CAPITAL
20,000
10 1/4% Trust Preferred Securities
guaranteed to a limited extent by
BANKUNITED FINANCIAL CORPORATION
PURCHASE AGREEMENT
Date: March 18, 1997
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BANKUNITED CAPITAL
20,000
10 1/4% Trust Preferred Securities
PURCHASE AGREEMENT
Friedman, Billings, Xxxxxx & Co.
Potomac Tower
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
BankUnited Capital (the "Issuer"), a statutory business trust created
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section 3801 ET SEQ.),
proposes to issue and sell to Friedman, Billings, Xxxxxx & Co. ("FBR") the
"Initial Purchaser," an aggregate of 20,000 10 1/4% Trust Preferred Securities,
Liquidation Amount $1,000 per Preferred Security (the "Preferred Securities").
The Preferred Securities are more fully described in the Offering Memorandum
referred to below.
The Preferred Securities will be guaranteed by BankUnited Financial
Corporation (the "Company"), to the extent that the Issuer has funds therefor,
as set forth in the Offering Memorandum (as defined below), with respect to
distributions and amounts payable upon liquidation or redemption (the
"Guarantee"), pursuant to the Guarantee Agreement dated as of December 30, 1996,
to be amended and dated as of the Closing Time (as defined below) (the
"Guarantee Agreement"), executed and delivered by the Company, as guarantor and
The Bank of New York (the "Guarantee Trustee"), a New York banking corporation
("The Bank of New York"), not in its individual capacity but solely as trustee,
for the benefit of the holders from time to time of the Preferred Securities.
The proceeds from the sale of the Preferred Securities will be aggregated with
the entire proceeds from the sale by the Issuer to the Company of the common
securities of the Issuer (the "Common Securities") and will be used by the
Issuer to purchase the 10 1/4% Junior Subordinated Deferrable Interest
Debentures Series A, due 2026 (the "Debentures") issued by the Company. The
Preferred Securities and the Common Securities will be issued pursuant to the
Amended and Restated Trust Agreement of the Issuer dated December 30, 1996, to
be amended and dated as of the Closing Time (the "Trust Agreement"), among the
Company, as Sponsor, the trustees named therein (the "Trustees") and the holders
from time to time of the Preferred Securities and the Common Securities, which
represent undivided beneficial interests in the assets of the Issuer. The
Debentures will be issued pursuant to an Indenture dated December 30, 1996, to
be supplemented and dated as of the Closing Time (the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Indenture
Trustee"). All expenses of the Issuer will be paid by the Company as set forth
in the Agreement as to Expenses and Liabilities, dated as of December 30, 1996
(the "Expense Agreement"). The Preferred Securities, the Guarantee and the
Debentures are collectively referred to herein as the "Securities." This
Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
Expense Agreement and the Registration Rights Agreement (as defined below) are
referred to collectively as the "Operative Documents". Capitalized terms used
herein without definition have the respective meanings specified in the Offering
Memorandum.
In order to authorize the Issuer to issue the Preferred Securities, the
Issuer and the Company solicited and received the requested number of consents
from the holders of previously issued Preferred Securities to amend, supplement
and waive certain provisions of the Operative Documents under which said
Preferred Securities were issued (the "Consent Solicitation").
The Preferred Securities will be offered and sold to the Initial
Purchaser without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act. In connection with the sale of the Preferred
Securities, the Issuer and the Company have prepared a preliminary offering
memorandum supplement dated February 28, 1997 (the "Preliminary Offering
Memorandum ") and a final offering memorandum dated the date hereof (such final
offering memorandum, in the form first furnished to the Initial Purchaser for
use in connection with the offering and sale of the Preferred Securities, or if
such form is not so used, in the form subsequently furnished for such use, the
"Offering Memorandum"), each setting forth certain information concerning the
Issuer, the Company and the Securities. The Issuer and the Company hereby
confirm that they have authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offer and resale of the
Preferred Securities by the Initial Purchaser, subject to the provisions of
Section 4(c) hereof. Unless stated to the contrary, all references herein to the
Offering Memorandum are to the Offering Memorandum at the date hereof (the
"Execution Time") and are not meant to include any amendment or supplement
thereto subsequent to the Execution Time. If the Issuer and the Company prepare
a supplement dated the date hereof to the Preliminary Offering Memorandum
containing only pricing related information, then the term "Offering Memorandum"
for purposes of this Agreement shall refer collectively to the Preliminary
Offering Memorandum and such supplement.
The Issuer and the Company understand that the Initial Purchaser
proposes to make an offering of the Preferred Securities only on the terms,
subject to the conditions and in the manner set forth in the Offering Memorandum
and Section 3 hereof.
The Initial Purchaser and other holders of Securities (including
subsequent permitted transferees) will be entitled to the benefits of the
registration rights agreement, to be dated as of the Closing Time (the
"Registration Rights Agreement"), among the Issuer, the Company and the Initial
Purchaser, in the form attached hereto as Exhibit A. Pursuant to the
Registration Rights Agreement, the Issuer and the Company will agree to file
with the Securities and Exchange Commission (the "Commission") upon the terms
and conditions set forth therein either an exchange offer registration statement
or a shelf registration statement pursuant to Rule 415 under
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the Securities Act relating to the exchange or resale, as the case may be, of
(i) the Preferred Securities and (ii) the Debentures by holders thereof, and to
use their reasonable best efforts to cause such registration statement to be
declared effective.
All references in this Agreement to financial statements and schedules
and other information that is "contained", "included", "deemed included" or
"stated" in the Offering Memorandum (and all other references of like import)
shall be deemed to include all such financial statements and schedules and other
information that are, or are deemed to be, incorporated by reference in the
Offering Memorandum; and all references in this Agreement to amendments or
supplements to the Offering Memorandum shall be deemed to include the filing of
any document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that is, or is deemed to be, incorporated by reference in the
Offering Memorandum.
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Issuer and the
Company, jointly and severally, represent and warrant to and agree with the
Initial Purchaser that:
(i) As of their respective dates, none of the Offering
Memorandum or any amendment or supplement thereto, and as of the
Closing Time, the Offering Memorandum, as amended or supplemented to
such time, contained or will contain an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that
neither the Company nor the Issuer makes any warranty or representation
with respect to any statement contained in the Offering Memorandum in
reliance upon and in conformity with information concerning the Initial
Purchaser and the plan of distribution and furnished in writing by or
on behalf of the Initial Purchaser to the Company expressly for use in
the Offering Memorandum. The documents included as Appendices,
incorporated by reference or deemed to be incorporated by reference in
the Offering Memorandum (the "Exchange Act Reports"), when they became
effective or were last amended or filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Exchange Act as applicable, and the rules and regulations (the
"Rules and Regulations") of the Commission and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
statements therein, in light of the circumstances under which they were
made, not misleading, and any further documents so filed and
incorporated by reference or deemed to be incorporated by reference in
the Offering Memorandum, when such documents become effective or are
filed with the Commission, as the case may be, shall conform in all
material respects to the requirements of the Securities Act and the
Exchange Act and the Rules and Regulations, as applicable, and shall
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(ii) Each of the Preferred Securities, the Guarantee and the
Debentures satisfy the eligibility requirements of Rule 144A(d)(3) of
the Rules and Regulations.
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(iii) None of the Issuer, the Company, any of their respective
affiliates (as such term is defined in Rule 501(b) of Regulation D of
the Rules and Regulations ("Regulation D")), or any person acting on
behalf of the foregoing (other than the Initial Purchaser) has,
directly or indirectly, made or will, directly or indirectly, make
offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration of
the Securities under the Securities Act.
(iv) None of the Issuer, the Company or any of their
respective affiliates (as such term is defined in Rule 501(b) of
Regulation D) or any person (other than the Initial Purchaser) acting
on behalf of the foregoing has engaged or will engage, in connection
with the offering of the Securities or any security of the same class
or series as the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D.
The Company and the Issuer have not entered and will not enter into any
contractual arrangement with respect to the distribution of the
Securities except for this Agreement and the Registration Rights
Agreement.
(v) Assuming the accuracy of the representations and
warranties and compliance with the agreement of the Initial Purchaser
in Section 3 hereof, it is not necessary in connection with the offer,
sale and delivery of the Preferred Securities to the Initial Purchaser,
or in connection with the initial resale of the Preferred Securities by
the Initial Purchaser in accordance with this Agreement, to register
the Preferred Securities under the Securities Act or to qualify the
Indenture, the Guarantee or the Trust Agreement under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(vi) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida
with full power and authority to own, lease and operate its properties,
to conduct its business and to execute, deliver and perform its
obligations under each of the Operative Documents.
(vii) The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than its
wholly owned subsidiaries, BankUnited, FSB (the "Bank"), BU Ventures,
Inc., BankUnited Mortgage Corporation (which has never commenced
operations), and the Bank's wholly owned subsidiaries, T&D Properties
of South Florida, Inc., Bay Holdings Inc. and SGC Mortgage Corporation
(BU Ventures, Inc., the Bank and the Bank's wholly owned subsidiaries
are collectively referred to herein as the "Subsidiaries"). Neither the
Company nor the Subsidiaries own any equity interests in any other
entities except as disclosed in the Offering Memorandum. The Company
and the Subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, with full power and
authority (corporate and other) to own and lease their properties and
conduct their respective businesses as described in the Offering
Memorandum; the Company owns all of the outstanding capital stock of
the Bank, BU Ventures, Inc., BankUnited Mortgage Corporation, and the
Bank owns all of the outstanding capital stock of T&D Properties of
South Florida, Inc., SGC Mortgage
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Corporation and Bay Holdings, Inc., each owning said stock free and
clear of all claims, liens, charges and encumbrances.
(viii) The Company has the authorized and outstanding capital
stock as set forth under the heading Capitalization in the Offering
Memorandum; the issued and outstanding shares of the Company's capital
stock have been duly authorized and validly issued, are fully paid and
nonassessable, have been issued in compliance with all federal and
state securities laws, were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities (except as may be disclosed in the Offering Memorandum), and
conform in all material respects to the description thereof contained
in the Offering Memorandum. All issued and outstanding shares of
capital stock of the Subsidiaries have been duly authorized and validly
issued and are fully paid and nonassessable. Except as set forth in the
Noncumulative Convertible Preferred Stock, Series C; the Noncumulative
Convertible Preferred Stock, Series C-II; as set forth in the schedule
of grants of options and bonus shares to officers, directors and
employees on November 14, 1996 (a copy of which has been provided to
the Initial Purchaser); and as disclosed in the Offering Memorandum and
the financial statements of the Company, and the related notes thereto,
included in the Offering Memorandum, neither the Company nor the
Subsidiaries have outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any such
options, rights, convertible securities or obligations. The description
of the Company's stock option and other stock plans or arrangements,
and the options or other rights granted and exercised thereunder, set
forth in the Offering Memorandum accurately and fairly present the
information required to be shown with respect to such plans,
arrangements, options and rights.
(ix) The Issuer has been duly formed and is validly existing
in good standing as a business trust under the Delaware Act with the
full power and authority to own its property and to conduct business
and to enter into and perform its obligations under this Agreement and
the Registration Rights Agreement and the Trust Agreement; the Issuer
is duly qualified to conduct business as a foreign corporation in good
standing in each jurisdiction in which such qualification is necessary;
the Issuer has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement, the
Registration Rights Agreement and the Trust Agreement, and the Issuer
is not a party to or otherwise bound by any agreement other than those
described in the Offering Memorandum.
(x) The Company and the Subsidiaries are duly qualified in or
licensed to transact business by, and are in good standing in, each
jurisdiction in which they own or lease real property, maintain an
office or conduct their respective businesses and in which the failure,
individually or in the aggregate with all other failures, to be so
licensed or qualified or to be in good standing would reasonably be
expected to have a material adverse effect on the financial condition,
properties, assets, business, results of operations or prospects of the
Company and the Subsidiaries taken as a whole (a "Material Adverse
5
Effect") and the Company has no knowledge that any proceeding has been
instituted in any such jurisdiction, revoking, limiting or curtailing,
or seeking to revoke, limit or curtail, such power and authority or
qualification.
(xi) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Issuer and (assuming the due
authorization, execution and delivery thereof by the other parties
thereto) is a legal, valid and binding agreement of each of the Company
and the Issuer enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of equity
(the "Enforceability Exceptions") and except to the extent that the
indemnification provisions of Section 7 hereof may be limited by
federal or state securities laws and public policy considerations in
respect thereof.
(xii) The Registration Rights Agreement has been duly
authorized by each of the Company and the Issuer and, at the Closing
Time, will have been executed and delivered by each of the Issuer and
the Company and upon such execution by each of the Issuer and the
Company (assuming the due authorization, execution and delivery thereof
by the other parties thereto) the Registration Rights Agreement will
constitute a legal, valid and binding obligation of each of the Issuer
and the Company enforceable against each of the Issuer and the Company
in accordance with the terms thereof, except as enforcement thereof may
be limited by the Enforceability Exceptions, and except as any rights
to indemnity may be limited by federal and state securities laws and
public policy considerations, and will conform to all statements
relating thereto in the Offering Memorandum.
(xiii) The Trust Agreement has been duly authorized by the
Company and, at the Closing Time, will have been executed and delivered
by the Company and the Administrative Trustees (as defined in the Trust
Agreement), and assuming the due authorization, execution and delivery
of the Trust Agreement by the Delaware Trustee and the Property Trustee
(each as defined in the Trust Agreement), the Trust Agreement will, at
the Closing Time, be a legal, valid and binding obligation of the
Company and the Administrative Trustees, enforceable against the
Company and the Administrative Trustees in accordance with its terms,
except as enforcement thereof may be limited by the Enforceability
Exceptions, and will conform to all statements relating thereto in the
Offering Memorandum.
(xiv) The Guarantee Agreement has been duly authorized by the
Company and when executed and delivered by the Company, and assuming
due authorization, execution and delivery thereof by The Bank of New
York, not in its individual capacity but solely as trustee, will
constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the Enforceability Exceptions,
and will conform to all statements relating thereto in the Offering
Memorandum.
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(xv) The Expense Agreement constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by the Enforceability Exceptions, and conforms to all statements
relating thereto in the Offering Memorandum.
(xvi) The Preferred Securities have been duly authorized by
the Issuer and the Trust Agreement and, when executed and authenticated
in the manner provided for in the Trust Agreement and issued and
delivered pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and (subject to
the terms of the Trust Agreement) fully paid and nonassessable
undivided beneficial interests in the assets of the Issuer, will be
entitled to the benefits of the Trust Agreement (and to the extent set
forth therein the Indenture) and will conform to all statements
relating thereto in the Offering Memorandum; the issuance of the
Preferred Securities is not subject to preemptive or other similar
rights; and holders of Preferred Securities will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit incorporated under the General
Corporation Law of the State of Delaware.
(xvii) The Common Securities have been duly authorized by the
Issuer and the Trust Agreement and, when executed, issued and delivered
by the Issuer to the Company against payment therefor as described in
the Offering Memorandum, will be validly issued undivided beneficial
interests in the assets of the Issuer, will be entitled to the benefits
of the Trust Agreement and will conform in all material respects to the
description thereof in the Offering Memorandum; the issuance of Common
Securities is not subject to preemptive or other similar rights; and at
the Closing Time, all of the issued and outstanding Common Securities
of the Issuer will be directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xviii) The Indenture has been duly authorized by the Company
and when executed and delivered by the Company, and assuming due
authorization, execution and delivery thereof by the Indenture Trustee,
will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the Enforceability Exceptions,
and will conform to all statements relating thereto in the Offering
Memorandum.
(xix) The Debentures have been duly authorized by the Company
and, when executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided in the
Trust Agreement, will constitute legal, 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 Enforceability Exceptions,
and will conform to all statements relating thereto in the Offering
Memorandum.
(xx) Except as disclosed in the Offering Memorandum, upon
payment by the Issuer of the purchase price therefor, the Trustee will,
on the Closing Date, have good and valid title to all such Debentures,
free from liens, encumbrances and defects that would
7
materially affect the value thereof or materially interfere with the
use made or to be made thereof by the Issuer.
(xxi) Price Waterhouse, LLP ("Price Waterhouse"), who is
reporting upon the financial statements included in Appendices to the
Offering Memorandum, are and were independent public accountants as
required by the Securities Act and the Rules and Regulations during the
periods covered by the financial statements which are included in the
Offering Memorandum.
(xxii) The consolidated financial statements of the Company
and consolidated financial statements of Suncoast Savings and Loan
Association, FSA ("Suncoast") included in the Appendices, in the
Offering Memorandum present fairly the consolidated financial position
of the Company and Suncoast, as the case may be as of the dates
indicated and the consolidated results of operations and changes in
stockholders' equity of the Company and its subsidiaries or Suncoast
for the periods specified. The consolidated financial statements of the
Company and Suncoast, included in Appendices A and C, respectively, in
the offering memorandum dated December 23, 1996 and of the Company
included as Appendix A to the offering circular supplement dated
February 28, 1997 have been prepared in all material respects in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved (except
as indicated in the notes thereto), and the supporting schedules, if
any, included in Appendices, incorporated or deemed incorporated by
reference in the Offering Memorandum present fairly in accordance with
GAAP the information required to be stated therein. The selected
consolidated financial data and the pro forma financial information of
the Company included in the Offering Memorandum present fairly the
information shown therein and have been prepared on a basis consistent
with that of the consolidated audited financial statements of the
Company (to the extent so indicated) included in the Appendices,
incorporated or deemed incorporated by reference in the Offering
Memorandum.
(xxiii) Since the respective dates as of which information is
given in the Offering Memorandum, except as may be otherwise stated
therein, there has not been (A) any material adverse change in the
financial condition, properties, assets, business, results of
operations or prospects of the Company and the Subsidiaries taken as a
whole, (B) any transaction entered into by the Company or any of the
Subsidiaries, or into which the Company or any of the Subsidiaries
intends to enter, which is material to the Company and the Subsidiaries
taken as a whole, or (C) any obligation, contingent or otherwise
incurred, directly or indirectly, by the Company or any of the
Subsidiaries which is material to the Company and the Subsidiaries
taken as a whole.
(xxiv) None of the Company, the Subsidiaries or the Issuer (A)
is in breach of, or in default in (nor has any event occurred which
with notice, lapse of time, or both, would constitute a breach of, or
default in) the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, bank loan or credit agreement, note, lease or other
agreement or instrument to which
8
it is a party or by which it may be bound or to which any of its
properties may be subject (collectively, the "Agreements and
Instruments"), except for any such breaches or defaults which,
individually or in the aggregate with all other breaches or defaults,
would not have a Material Adverse Effect or have an adverse effect on
the legality, validity or enforceability of any of the Operative
Documents or (B) is in breach of, or in default under (nor has any
event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under) its respective charter or
by-laws. The execution, delivery and performance of this Agreement and
the Registration Rights Agreement by the Company and the Issuer, the
issuance, sale and delivery of the Preferred Securities and the Common
Securities by the Issuer, the issuance, sale and delivery of the
Debentures by the Company, the execution delivery and performance by
the Company of this Agreement, the Trust Agreement, the Indenture, the
Guarantee Agreement, the Expense Agreement and the Registration Rights
Agreement, the consummation by the Company and the Issuer of the
transactions contemplated hereby and thereby, compliance by the Company
and the Issuer with the terms of the foregoing and the application of
the proceeds from the sale of the Preferred Securities as contemplated
by the Offering Memorandum (A) have been duly authorized by all
necessary corporate action on the part of the Company and the Issuer,
(B) do not and will not conflict with or result in any breach of or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would constitute a breach of, or default under)
any provision of the charter or by-laws of the Company or the
Subsidiaries or any provision of the Operative Documents, (C) do not
and will not conflict with or result in any breach of or constitute a
default under (nor constitute any event which with notice, lapse of
time, or both would constitute a breach of, or default under) any of
the terms or provisions of, or give rise to any right to accelerate the
maturity or require the prepayment of any indebtedness under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company, the Subsidiaries or the Issuer
under any such Agreement or Instrument (except, with respect to this
clause (C), for such conflicts, breaches, defaults, accelerations,
prepayments or liens, charges or encumbrances, which, individually or
in the aggregate with all other conflicts, breaches, defaults,
accelerations, prepayments or liens, charges or encumbrances, would not
have a Material Adverse Effect) and (D) do not and will not conflict
with, or result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would
constitute a breach of, or default under), any federal, state or local
law, regulation or rule or any decree, judgment or order applicable to
the Company, the Subsidiaries or the Issuer.
(xxv) No approval, authorization, consent or order of or
filing with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the offering, issuance or sale of the Securities by the Issuer and
the Guarantee and the Debentures by the Company or is required for the
valid authorization, execution, delivery and performance by the Company
and the Issuer of the Operative Documents or the consummation by the
Company and the Issuer of the transactions contemplated therein, except
for such authorizations as may be required by the securities or "blue
sky" laws of the various states in connection with the offer and sale
9
of the Securities or by the federal and state securities laws in
connection with the registration obligations under the Registration
Rights Agreement.
(xxvi) The deposits of the Bank are insured by the Federal
Deposit Insurance Corporation (the "FDIC") up to legally applicable
limits, and no proceedings for the termination or revocation of such
insurance are pending or, to the best knowledge of the Company or the
Bank, threatened.
(xxvii) Except as disclosed in the Offering Memorandum, there
are no legal or governmental actions, suits or proceedings pending or,
to the knowledge of the Company, threatened to which the Company, the
Issuer, or any of the Subsidiaries is or may be a party or of which
property owned or leased by the Company, the Issuer or any of the
Subsidiaries is or may be the subject, or related to environmental,
discrimination or financial regulatory matters, which actions, suits or
proceedings might, individually or in the aggregate, prevent or
adversely affect the transactions contemplated by this Agreement or are
likely to result in a Material Adverse Effect and no labor disturbance
by the employees of the Company or the Subsidiaries exists or is
imminent which would be expected to affect adversely such condition,
properties, business, results of operations or prospects of the
Company, the Issuer and the Subsidiaries, taken as a whole. Except as
disclosed in the Offering Memorandum, no enforcement proceeding,
whether formal or informal, has been commenced against the Company, the
Issuer or any of the Subsidiaries by the FDIC or, to the Company's, the
Issuer's, and the Subsidiaries' knowledge, any other governmental
authority, nor have any such proceedings been instituted, threatened or
recommended. Except as disclosed in the Offering Memorandum, neither
the Company, the Issuer, nor any of the Subsidiaries, or any of their
respective officers, employees or directors is a party or subject to
the provisions of any regulatory action, injunction, judgment, decree
or order of any court, regulatory body, administrative agency or other
governmental body affecting the business of the Company, the Issuer or
any of the Subsidiaries.
(xxviii) The Company, the Issuer or the Subsidiaries has good
and marketable title to all their properties and assets, free and clear
of all liens, charges, encumbrances or restrictions, except such as do
not materially adversely affect the value of such properties and assets
and do not interfere with the use made of such properties and assets by
the Company, the Issuer and the Subsidiaries as the case may be; all of
the leases and subleases material to the business of the Company, the
Issuer or the Subsidiaries or under which the Company, the Issuer or
the Subsidiaries holds properties described in the Offering Memorandum
are in full force and effect; and the Company, the Issuer or the
Subsidiaries have no notice of any material claim of any sort which has
been asserted by anyone adverse to the rights of the Company, the
Issuer or the Subsidiaries as owner or as lessee or sublessee under any
of the leases or subleases mentioned above, or materially affecting or
questioning the rights of the Company, the Issuer or the Subsidiaries
to the continued possession of the leased or subleased premises under
any such lease or sublease. Except as disclosed in the Offering
Memorandum and other than such leases and properties
10
as are immaterial in the aggregate, the Company, the Issuer or the
Subsidiaries owns or leases all such properties as are necessary to its
operations as now conducted.
(xxix) Since the respective dates as of which information is
given in the Offering Memorandum, and except as described in or
specifically contemplated by the Offering Memorandum: (i) the Company,
the Issuer and the Subsidiaries have not incurred any material
liabilities or obligations, indirect, direct or contingent, or entered
into any material verbal or written agreement or other transaction
whether or not arising in the ordinary course of business or which
would result in a material reduction in the future earnings of the
Company and the Subsidiaries (taken as a whole); (ii) there has not
been any material increase in the long-term debt of the Company, the
Issuer and the Subsidiaries (taken as a whole) or in the aggregate
dollar or principal amount of the Company's and the Subsidiaries (taken
as a whole) assets which are classified as substandard, doubtful or
loss or loans which are 90 days or more past due or real estate
acquired by foreclosure; (iv) there has not been any Material Adverse
Effect on the aggregate dollar amount of the Company's and the
Subsidiaries' (taken as a whole) deposits or their consolidated net
worth or spread; (v) there has been no material adverse change in the
Company's and the Subsidiaries relationship with its insurance
carriers, including, without limitation, cancellation or other
termination of the Company's or the Subsidiaries' fidelity bond or any
other type of insurance coverage; (vi) except as disclosed in the
Offering Memorandum there has been no material change in management of
the Company or the Subsidiaries; (vii) the Company and the Subsidiaries
have not sustained any material loss or interference with their
respective business or properties from fire, flood, windstorm,
earthquake, accident or other calamity, whether or not covered by
insurance; (viii) the Company has not paid or declared any dividends
(except for regularly scheduled Company preferred stock dividends) or
other distributions with respect to its capital stock and the Company
and the Subsidiaries are not in default in the payment of principal or
interest on any outstanding debt obligations; (ix) there has not been
any change in the capital stock (other than upon the sale of the Common
Shares hereunder); and (x) there has not been any material adverse
change in the condition (financial or otherwise), business, properties,
results of operations or prospects of the Company and the Subsidiaries,
taken as a whole, other than changes resulting from changes in the
economy of the Company's and the Subsidiaries' industry generally.
(xxx) Except as disclosed in or specifically contemplated by
the Offering Memorandum, the Company and the Subsidiaries have
sufficient trademarks, trade names, patent rights, copyrights,
licenses, approvals and governmental authorizations to conduct their
businesses as now conducted; the expiration of any trademarks, trade
names, patent rights, copyrights, licenses, approvals or governmental
authorizations would not have a Material Adverse Effect; and the
Company and the Subsidiaries have no knowledge of any material
infringement by it of trademark, trade name rights, patent rights,
copyrights, licenses, trade secret or other similar rights of others,
and, to the Company's and the Subsidiaries' knowledge, there is no
claim being made against the Company or any of the Subsidiaries
regarding trademark, trade name, patent, copyright, license, trade
secret or other infringement which could have a Material Adverse
Effect.
11
(xxxi) The Company has not been advised, and has no reason to
believe, that either it or any of the Subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations
of the jurisdictions in which it is conducting business, including,
without limitation, all applicable local, state and federal financial
institution and environmental laws and regulations; except where
failure to be so in compliance would not have a Material Adverse
Effect. Neither the Company nor any of its affiliates (including the
Subsidiaries) is a bank holding company within the meaning of the Bank
Holding Company Act of 1956, as amended, or applicable regulations
promulgated thereunder. The Company is a savings and loan holding
company within the meaning of the Home Owners' Loan Act. The Bank is an
insured depository institution within the meaning of the Federal
Deposit Insurance Act, as amended.
(xxxii) Except as disclosed in the Offering Memorandum, the
Bank is not in violation of any directive from the FDIC or any other
governmental authority and the Bank is in compliance with all federal
and state laws and regulations that regulate or are concerned with its
business including, without limitation, the Financial Institutions
Recovery, Reform and Enforcement Act of 1989 ("FIRREA"), the Federal
Deposit Insurance Act (the "FDIA"), the National Housing Act (the
"NHA"), the Federal Deposit Insurance Corporation Improvement Act of
1991 ("FDICIA") and all other applicable laws and regulations where the
failure to comply would have a Material Adverse Effect.
(xxxiii) The Company and the Subsidiaries have filed or caused
to be filed all material federal, state and foreign income and
franchise tax returns and have paid all taxes shown as due thereon; and
the Company has no knowledge of any tax deficiency which has been or
might be asserted or threatened against the Company or the Subsidiaries
which would have a Material Adverse Effect.
(xxxiv) The Company and the Bank maintain insurance of the
types and in the amounts generally deemed adequate for their respective
businesses, including, but not limited to, general liability insurance,
fidelity bond insurance and insurance covering real and personal
property owned or leased by the Company or the Bank against theft,
forgery, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force
and effect.
(xxxv) All material transactions between the Company and the
Bank and the officers, directors and major stockholders of the Company
that are required to be disclosed under the Exchange Act and the Rules
and Regulations have been accurately disclosed in the Offering
Memorandum; and the terms of each such transaction are fair to the
Company and no less favorable to the Company than the terms that could
have been obtained from unrelated parties, except as disclosed in the
Offering Memorandum.
(xxxvi) None of the Issuer, the Company or the Subsidiaries
are, or after giving effect to the consummation of the transactions
contemplated herein, will be, and neither the Company nor the Issuer is
directly or indirectly controlled by, or acting on behalf of
12
any person which is, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxxvii) The Company has not taken and will not take, directly
or indirectly, any action designed to, or that the Company reasonably
believes would cause or result in, stabilization or manipulation of the
price of the Preferred Securities.
(xxxviii) The Company has not distributed any offering
material in connection with the offering and sale of the Preferred
Securities other than the Preliminary Offering Memorandum and the
Offering Memorandum.
(xxxix) The Preferred Securities have been designated PORTAL
eligible securities in accordance with the rules and regulations of the
National Association of Securities Dealers, Inc. ("NASD").
(xl) Other than pursuant to this Agreement or as disclosed in
the Offering Memorandum under the caption "Plan of Distribution," there
are no contracts, agreements or understandings between either the
Issuer or the Company and any person that give rise to a valid claim
against the Issuer, the Company or the Initial Purchaser for a
brokerage commission, finder's fee or other like payment.
(xli) Except as set forth in the Registration Rights Agreement
and the Noncumulative Convertible Preferred Stock, Series C and the
Noncumulative Convertible Preferred Stock, Series C-II or as described
in the Offering Memorandum, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities to be covered by either the exchange or
the shelf registration referred to in the Registration Rights
Agreement.
(xlii) The Company and the Subsidiaries have all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business, except where any failures to obtain any such
licenses, authorizations, consents or approvals, or to make any such
filings, would not, individually or in the aggregate with all other
such failures, reasonably be expected to have a Material Adverse
Effect; neither the Company nor the Subsidiaries are in violation of,
or in default under, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or
rule or any decree, order or judgment applicable to the Company or the
Subsidiaries the effect of which, individually or in the aggregate with
all other violations and defaults, would reasonably be expected to have
a Material Adverse Effect.
13
(xliii) The Company is duly registered as a unitary savings
and loan holding company under the Home Owners Loan Act, as amended;
the deposit accounts of each of the Company's banking subsidiaries are
insured by the Savings Association Insurance Fund of the Federal
Deposit Insurance Corporation ("FDIC") to the fullest extent permitted
by law and the rules and regulations of the FDIC, and proceedings for
the termination of such insurance are not pending or, to the best of
the Company's knowledge, threatened; and neither the Company nor the
Subsidiaries are a party to or otherwise the subject of any consent
decree, memorandum of understanding, written commitment or other
written supervisory agreement with the Office of Thrift Supervision,
Department of the Treasury ("OTS") or any other federal or state
authority or agency charged with the supervision or insurance of
depositary institutions or their holding companies.
(xliv) The Company has not relied upon the Initial Purchaser
or legal counsel for the Initial Purchaser for any legal, tax or
accounting advice in connection with the Offering except as to the
qualifications of the Preferred Securities under applicable state
securities laws.
(xlv) The Issuer has received the required number of consents
to amend, supplement and waive all provisions of the Operative
Documents necessary for the Company and the Issuer to perform its
obligations under this Agreement.
(b) Any certificate signed by any officer of the Company or by any
trustee of the Issuer and delivered to you or to counsel for the Initial
Purchaser shall be deemed a representation and warranty by the Company and the
Issuer to the Initial Purchaser as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE INITIAL PURCHASER; CLOSING. (a) On
the basis of the representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Issuer agrees to sell to the
Initial Purchaser, and the Initial Purchaser agrees, to purchase from the
Issuer, at the purchase price of $985.00 per Preferred Security, the Preferred
Securities.
(b) As compensation to the Initial Purchaser for its commitments
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Debentures, the Company hereby agrees to
pay at the Closing Time to the Initial Purchaser a commission equal to 3% of the
aggregate offering price of the Preferred Securities sold.
(c) Payment of the purchase price for, and delivery of certificates
for, the Preferred Securities shall be made at the offices of Silver, Xxxxxxxx &
Xxxx, L.L.P., 0000 Xxx Xxxx Xxxxxx, X.X., 0xx Xxxxx, Xxxxxxxxxx, X.X. 00000, at
10:00 a.m., New York City time, on March 24, 1997 or such later date and time
not more than two full business days thereafter as you, the Company and the
Issuer shall mutually determine (such date and time of payment and delivery
being herein called the "Closing Time"). Payment shall be made to the Company,
net of the compensation due the Initial Purchaser pursuant to Section 2(b) and
net of any expenses due the Initial Purchaser to the extent such expenses are
determinable at the Closing Time, by wire transfer of immediately available
funds to a bank account designated by the Company against delivery to the
account of the Initial Purchaser of the Preferred Securities.
14
(d) Certificates for the Preferred Securities shall be in such
denominations and registered in such names as the Initial Purchaser may request
in writing at least two full business days before the Closing Time. The
certificates for the Preferred Securities will be made available in Washington,
D.C. for examination and packaging by you not later than 10:00 A.M. on the
business day immediately prior to the Closing Time.
Section 3. RESALE OF THE SECURITIES. The Initial Purchaser represents
and warrants to, and agrees with, the Issuer and the Company that:
(a) it is a "Qualified Institutional Buyer" as defined in Rule 144A of
the Rules and Regulations (a "Qualified Institutional Buyer") and an "accredited
investor" within the meaning of Rule 501(a) of Regulation D (an "Accredited
Investor");
(b) it has not offered or sold, and will not offer or sell, any
Preferred Securities (which for purposes of this Section 3 includes the
Guarantee, unless the context requires otherwise) except to persons whom it
reasonably believes to be (i) in the case of offers inside the United States (A)
Qualified Institutional Buyers or (B) "accredited investors" that, prior to
their purchase of the Preferred Securities, deliver to it a letter demonstrating
such investor status or (ii) in the case of offers and sales outside the United
States, to persons other than U.S. persons ("foreign purchasers", which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust));
(c) it has not made and will not make offers or sales of the Preferred
Securities in the United States by means of any form of general solicitation or
general advertising (within the meaning of Regulation D) or in any manner
involving a public offering (within the meaning of Section 4(2) under the
Securities Act) in the United States prior to the effectiveness of a
registration statement with respect to the Securities;
(d) it has not made and will not make offers or sales of the Preferred
Securities to, or for the account or benefit of, U.S. persons as part of its
distribution at any time, or otherwise until one year after the Closing Time,
except in accordance with the Securities Act and the Rules and Regulations
thereunder or pursuant to an exemption from the registration requirements of the
Securities Act; and
(e) with respect to offers and sales outside the United States:
(i) it understands that no action has been or will be taken in
any jurisdiction by the Issuer or the Company that would permit a
public offering of the Securities, or possession or distribution of the
Offering Memorandum or any other offering or publicity material
relating to the Securities, in any country or jurisdiction where action
for that purpose is required;
(ii) it will comply with all applicable laws and regulations
in each jurisdiction in which it acquires, offers, sells or delivers
Securities or has in its possession or
15
distributes the Offering Memorandum or any such other material, in all
cases at its own expense;
(iii) the Securities have not been and will not be registered
under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons,
except pursuant to an exemption from the registration requirements of
the Securities Act.
Section 4. CERTAIN COVENANTS OF THE ISSUER AND THE COMPANY. The Issuer
and the Company covenant with the Initial Purchaser as follows:
(a) The Issuer and the Company will promptly deliver to the Initial
Purchaser and counsel for the Initial Purchaser, without charge, as many copies
of the Preliminary Offering Memorandum, the Offering Memorandum, any amendments
or supplements thereto, the documents incorporated or deemed incorporated by
reference in the Offering Memorandum and the Operative Documents as the Initial
Purchaser and their counsel may reasonably request.
(b) The Company and the Issuer will give the Initial Purchaser timely
notice of their intention to prepare any amendment or supplement to the
Preliminary Offering Memorandum or the Offering Memorandum or to file with the
Commission any document incorporated by reference in the Offering Memorandum,
will furnish the Initial Purchaser and counsel to the Initial Purchaser with
copies of any such amendment, supplement or document and will obtain the consent
of the Initial Purchaser to any such amendment or supplement or to any such
filing (which consent shall not be unreasonably withheld or delayed).
(c) If at any time prior to completion of the distribution of the
Preferred Securities (which for purposes of this Section 4 includes the
Guarantee, unless the context otherwise requires) by the Initial Purchaser to
purchasers who are not their affiliates (as determined by you) any event shall
occur or condition exist as a result of which it is necessary, in the reasonable
opinion of the Initial Purchaser, counsel for the Initial Purchaser or counsel
for the Company, to amend or supplement the Offering Memorandum in order that
the Offering Memorandum, as then amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading or if, in
the reasonable opinion of the Initial Purchaser, counsel to the Initial
Purchaser or counsel to the Company, such amendment or supplement is necessary
to comply with applicable law, the Issuer and the Company will, subject to
paragraph (b) of this Section 4, promptly prepare such amendment or supplement
as may be necessary to correct such untrue statement or omission or to effect
such compliance (in form and substance reasonably agreed upon by counsel to the
Initial Purchaser), so that as so amended or supplemented, the statements in the
Offering Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time it is delivered to a
purchaser, not misleading or so that such Offering Memorandum as so amended or
supplemented will comply with applicable law, as the case may be, and furnish to
the Initial Purchaser such number of copies of such amendment or supplement as
the Initial Purchaser may reasonably
16
request. The Issuer and the Company agree to notify the Initial Purchaser in
writing to suspend use of the Offering Memorandum as promptly as practicable
after the occurrence of an event specified in this paragraph (c), and the
Initial Purchaser hereby agrees upon receipt of such notice from the Issuer and
the Company to suspend use of the Offering Memorandum until the Issuer and the
Company have amended or supplemented the Offering Memorandum to correct such
misstatement or omission or to effect such compliance.
(d) Notwithstanding any provision of paragraph (b) or (e) of this
Section 4 to the contrary, however, the Issuer's and the Company's obligations
under paragraphs (b) and (c) of this Section 4 and the Initial Purchaser's
obligations under paragraph (c) of this Section 4 shall terminate on the earlier
to occur of (i) the effective date of an exchange or shelf registration
statement with respect to the Securities filed pursuant to the Registration
Rights Agreement and (ii) the date upon which the Initial Purchaser and its
affiliates cease to hold Securities acquired as part of their initial
distribution, but in any event (in the case of this clause (ii)) not later than
one year from the Closing Time.
(e) Neither the Company, the Issuer nor any of their respective
affiliates (as defined in Rule 501(b) of Regulation D), nor any person acting on
behalf of the foregoing, will engage in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities prior to the effectiveness of a registration
statement with respect to the Securities. No covenant is made hereby with
respect to the conduct of the Initial Purchaser or its affiliates (as such term
is defined in Rule 501(b) of Regulation D).
(f) Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D), including without limitation the Issuer, will, directly
or indirectly, make offers or sales of any security, or solicit offers to buy
any security, under circumstances that would require the registration of the
Securities under the Securities Act.
(g) So long as any of the Securities are "restricted securities" within
the meaning of Rule 144(a)(3) of the Rules and Regulations, the Company will,
during any period in which it is not subject to and in compliance with Section
13 or 15(d) of the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder) of
such restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) of the
Rules and Regulations. This covenant is intended to be for the benefit of the
holders, and the prospective purchasers designated by such holders, from time to
time of such restricted securities.
(h) Each Preferred Security (and each Debenture distributed to holders
of Preferred Securities pursuant to the terms of the Trust Agreement) will bear
a legend (and with respect to the Debentures a similar legend) substantially in
the following form until such legend shall no longer be necessary or advisable
because the Preferred Securities (and the Debentures) are no longer subject to
the restrictions on transfer described herein:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
17
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE SERIES A ISSUER AND THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE THIRD ANNIVERSARY OF THE LATER OF THE ISSUANCE HEREOF (OR ANY
PREDECESSOR SECURITY HERETO) AND THE LAST DAY ON WHICH THE SERIES A ISSUER OR
ANY AFFILIATE OF THE SERIES A ISSUER WAS THE OWNER HEREOF (OR ANY PREDECESSOR
SECURITY HERETO) OR (Y) THEREAFTER, BY ANY HOLDER THAT WAS AN AFFILIATE OF THE
SERIES A ISSUER AND THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE SERIES A ISSUER
OR ANY SUBSIDIARY THEREOF, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE UPON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFER OR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE HOLDER, BY PURCHASING THIS SECURITY, IS DEEMED TO REPRESENT
THAT IT (X) IS NOT ITSELF, AND IS NOT ACQUIRING THE SECURITY WITH THE ASSETS OF,
(i) AN "EMPLOYEE BENEFIT PLAN" (WITHIN THE MEANING OF SECTION 3(3) OF ERISA), A
"PLAN" (WITHIN THE MEANING OF SECTION 4975(e)(i) OF THE INTERNAL REVENUE CODE),
OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT
IN THE ENTITY BY SUCH AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" AND THE APPLICATION
OF U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101 OR (ii) A
"GOVERNMENTAL PLAN" (WITHIN THE MEANING OF SECTION 3(32) OF ERISA) OR (Y)(i) IS
ITSELF, OR IS ACQUIRING THE SECURITY WITH THE ASSETS OF, AN "INVESTMENT FUND"
(WITHIN THE MEANING OF PART V(b) OF U.S. DEPARTMENT OF LABOR PTE 84-14) MANAGED
BY A "QUALIFIED PROFESSIONAL ASSET MANAGER" (WITHIN THE MEANING OF PART V(a) OF
PTE 84-14) WHICH HAS MADE OR PROPERLY AUTHORIZED THE DECISION FOR SUCH FUND TO
PURCHASE THE SECURITIES, UNDER CIRCUMSTANCES SUCH THAT PTE 84-14 IS APPLICABLE
TO THE PURCHASE AND HOLDING OF SUCH SECURITIES, (ii) IS AN INSURANCE COMPANY
POOLED SEPARATE ACCOUNT PURCHASING SECURITIES PURSUANT TO SECTION I OF U.S.
DEPARTMENT OF LABOR PTE 90-1 OR A BANK COLLECTIVE INVESTMENT FUND PURCHASING
PURSUANT TO SECTION I OF U.S. DEPARTMENT OF LABOR PTE 91-38, AND IN EITHER CASE,
NO "PLAN" OR "EMPLOYEE BENEFIT PLAN" NOT PURCHASING PURSUANT TO PTE 84-14 OWNS
MORE THAN 10% OF THE ASSETS OF SUCH ACCOUNT OR COLLECTIVE FUND (WHEN AGGREGATED
WITH OTHER PLANS OF THE SAME EMPLOYER OR EMPLOYEE ORGANIZATION), (iii) IS AN
18
INSURANCE COMPANY USING THE ASSETS OF THE GENERAL ASSET ACCOUNT OF THE INSURANCE
COMPANY TO PURCHASE THE SECURITIES PURSUANT TO SECTION I OF U.S. DEPARTMENT OF
LABOR PTE 95-60, IN WHICH CASE THE RESERVES AND LIABILITIES FOR THE GENERAL
ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN, TOGETHER WITH ANY OTHER
PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATES) OR EMPLOYEE ORGANIZATION,
DO NOT EXCEED 10% OF THE TOTAL RESERVES AND LIABILITIES OF THE INSURANCE COMPANY
GENERAL ACCOUNT (EXCLUSIVE OF LIABILITIES), PLUS SURPLUS AS SET FORTH IN THE
NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS' ANNUAL STATEMENT FILED WITH THE
STATE OF DOMICILE OF THE INSURER OR (iv) IS A PLAN ACQUIRING THE SERIES A
PREFERRED SECURITIES WITH ASSETS OVER WHICH AN IN-HOUSE ASSET MANAGER (WITHIN
THE MEANING OF PART IV(a) OF PTE 96-23) HAS DISCRETIONARY AUTHORITY, UNDER
CIRCUMSTANCES SUCH THAT PTE 96-23 IS APPLICABLE TO THE PURCHASE AND HOLDING OF
SUCH SECURITIES. THE HOLDER HEREOF FURTHER AGREES FOR THE BENEFIT OF THE SERIES
A ISSUER THAT IT WILL NOTIFY ANY PURCHASER HEREOF OF THE RESALE RESTRICTIONS
REFERRED TO ABOVE. AN ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES THAT IT
WILL FURNISH TO THE SERIES A ISSUER AND THE PROPERTY TRUSTEE SUCH CERTIFICATES,
LEGAL OPINIONS AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM
THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE SERIES A ISSUER THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) A PERSON THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT THAT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT. THE SERIES A PREFERRED SECURITIES WILL BE
ISSUED, AND MAY BE TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF
NOT LESS THAN $100,000. ANY TRANSFER, SALE OR OTHER DISPOSITION OF SERIES A
PREFERRED SECURITIES IN A BLOCK HAVING A LIQUIDATION 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 SERIES A PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH SERIES A PREFERRED SECURITIES, AND SUCH TRANSFEREE SHALL
BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SERIES A PREFERRED SECURITIES."
(i) The Company will, or will cause the Issuer to, arrange for the
registration and qualification of the Preferred Securities for offering and sale
under the applicable securities or "blue sky" laws of such states and other U.S.
jurisdictions as the Initial Purchaser may reasonably designate in connection
with the resale of Preferred Securities as contemplated by this Agreement and
the Offering Memorandum and will continue such qualifications in effect for as
long as may be necessary to complete the distribution of the Preferred
Securities; PROVIDED that the Company shall not be required to (i) qualify as a
foreign corporation, (ii) consent to the service of process
19
under the laws of any such state (except service of process with respect to the
offering and sale of the Preferred Securities), (iii) subject itself to taxation
in any such jurisdiction or (iv) make any change to its certificate of
incorporation or by-laws in connection with such qualification. The Company
shall, or shall cause the Issuer to, promptly advise the Initial Purchaser of
the receipt by the Company or the Issuer, as the case may be, of any
notification with respect to the suspension of the qualification or exemption
from qualification of the Preferred Securities for offering or sale in any
jurisdiction or the institution of any proceeding for such purpose.
(j) The Issuer will use the proceeds received from the sale of the
Preferred Securities and the Company will use the proceeds received from the
issue and sale of the Debentures in the manner specified in the Offering
Memorandum under the caption "Use of Proceeds."
(k) Neither the Issuer nor the Company shall, directly or indirectly,
for a period commencing on the date hereof and ending on the 180th day after the
date hereof, except with the prior written consent of FBR, offer to sell,
pledge, sell, grant any option, warrant or other right to purchase, or otherwise
transfer or dispose of (or agree to do any of the foregoing) (a) any trust
certificates or other securities of the Issuer, (b) any preferred stock or any
other security of the Company that is substantially similar to the Preferred
Securities or (c) any other securities which are convertible into, or
exercisable or exchangeable for, any of the securities described in (a) and (b)
above. The foregoing sentence shall not apply to (i) the issuance of the Common
Securities to the Company by the Issuer, (ii) the issuance of the Preferred
Securities being sold hereunder and the sale thereof pursuant hereto or (iii)
the issuance of the Debentures to the Issuer by the Company.
(l) The Company agrees that no future offer and sale of securities of
the Company of any class will be made if, as a result of the doctrine of
"integration" referred to in Rule 502 of Regulation D, such offer and sale could
reasonably have been expected, at the time of such sale, based upon public laws,
Commission releases and Commission no-action letters, to render invalid the
exemption from the registration requirements of the Securities Act relied upon
in connection with the transactions contemplated by this Agreement.
(m) In connection with the original distribution of the Preferred
Securities, the Company agrees that, prior to any offer or resale of the
Preferred Securities by the Initial Purchaser, the Initial Purchaser and counsel
for the Initial Purchaser shall have the right to make, and promptly receive
from the Company adequate information with respect to, reasonable inquiries into
the business of the Company and its subsidiaries.
Section 5. PAYMENT OF EXPENSES. The Company will pay all costs and
expenses incident to the performance of the obligations under this Agreement of
the Company and the Issuer, including (a) the preparation and printing of the
Preliminary Offering Memorandum and the Offering Memorandum (including financial
statements, exhibits and documents included as Exhibits or incorporated by
reference therein) and any amendments or supplements thereto, and the cost of
delivery thereto to the Initial Purchaser, (b) the preparation, issuance,
printing and distribution of the Preferred Securities and any survey of state
securities or "blue sky" laws or legal investment memoranda ("Blue Sky Survey"),
(c) the delivery of the Preferred Securities to
20
the Initial Purchaser, including any stock transfer taxes payable upon the sale
of the Preferred Securities to the Initial Purchaser, (d) the fees and
disbursements of the Company's and the Issuer's counsel and accountants (e) the
reasonable out-of-pocket expenses of the Initial Purchaser up to $60,000
(including up to $50,000 of the fees and disbursements of the Initial
Purchaser's counsel) of which $25,000 has been paid prior to the execution of
this Agreement (f) the qualification of the Preferred Securities under the
applicable state securities or "blue sky" laws in accordance with Section 4(i)
hereof, including all filing fees and reasonable fees and disbursement of
counsel for the Initial Purchaser in connection therewith and in connection with
the Blue Sky Survey, (g) any filing fees in connection with any filing for
review of the offering with the NASD, (h) any fees charged by rating agencies
for rating the Preferred Securities, (i) the fees and expenses of the Indenture
Trustee, the Property Trustee, the Guarantee Trustee and the Delaware Trustee,
including reasonable fees and disbursements of counsel for such trustees, (j)
all listing fees and reasonable expenses in connection with the application for
designation of the Preferred Securities as PORTAL eligible securities and (k)
the cost of qualifying the Preferred Securities with The Depository Trust
Company.
If the sale of the Preferred Securities provided for herein is not
consummated because this Agreement is terminated pursuant to Section 8 hereof or
because any condition to the obligations of the Initial Purchaser set forth in
Section 6 hereof is not satisfied, other than by reason of a default by the
Initial Purchaser in payment for the Preferred Securities at the Closing Time,
the Company shall reimburse the Initial Purchaser promptly upon demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursement of
counsel to the Initial Purchaser) that shall have been incurred by them in
connection with the proposed purchase and sale of the Preferred Securities,
however, such expenses shall be limited, as set forth above, in the proceeding
paragraph of this section.
Section 6. CONDITIONS OF INITIAL PURCHASER'S OBLIGATION. The obligation
of the Initial Purchaser to purchase and pay for the Preferred Securities
pursuant to this Agreement is subject to the following conditions:
(a) The Company shall furnish to the Initial Purchaser at the Closing
Time an opinion of Stuzin & Camner, P.A., special counsel for the Company,
addressed to the Initial Purchaser and dated the day of the Closing Time and in
form reasonably satisfactory to Silver, Xxxxxxxx & Xxxx, L.L.P., counsel for the
Initial Purchaser, to the effect that:
(i) This Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company.
(ii) Each of the Trust Agreement, the Guarantee Agreement and
the Expense Agreement has been duly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
21
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and, when duly authorized, executed and
delivered by the Indenture Trustee will constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(iv) The Debentures have been duly authorized, executed,
issued and delivered by the Company and, when the Debentures have been
duly authenticated by the Indenture Trustee and paid for by the Issuer,
will constitute legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(v) The terms of the Registration Rights Agreement, the
Indenture, the Trust Agreement, the Guarantee, the Expense Agreement,
the Preferred Securities, the Debentures and the Common Securities have
been reviewed by such counsel and conform in all material respects to
the descriptions thereof in the Offering Memorandum.
(vi) When the Preferred Securities, the Guarantee and the
Debentures are issued and delivered pursuant to this Agreement, such
securities will not be of the same class (within the meaning of Rule
144A of the Rules and Regulations) as securities of the Company listed
on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated interdealer quotation
system.
(vii) Assuming the accuracy of the representations and
warranties and compliance with the agreement of the Initial Purchaser
in Section 3 hereof, the offer, sale and delivery of the Preferred
Securities to the Initial Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum and the initial resale of the
Preferred Securities by the Initial Purchaser in the manner
contemplated in the Offering Memorandum and this Agreement do not
require registration under the Securities Act, and, on or before the
date hereof, none of the Indenture, the Trust Agreement or the
Guarantee Agreement is required to be qualified under the Trust
Indenture Act, it being understood that such counsel need express no
opinion as to any subsequent resale of any Preferred Securities.
(viii) Neither the Issuer nor the Company is required to be
registered as an "investment company" under the 1940 Act.
(ix) No approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the offering, issuance or sale of the Securities by the Issuer or
is required for the valid authorization, execution, delivery and
performance by the Issuer of the Operative Documents to which it is a
party or the consummation by the Issuer of the transactions
contemplated therein, except for such authorizations as may be required
22
by the securities or "blue sky" laws of the various states in
connection with the offer and sale of the Securities or by the federal
and state securities laws in connection with the registration
obligations under the Registration Rights Agreement.
(x) The execution and delivery by the Company of, and the
performance by the Company under, this Agreement, the Trust Agreement,
the Indenture, the Guarantee, the Expense Agreement and the
Registration Rights Agreement, the consummation by the Company of the
transactions contemplated hereby and thereby, the filing of the
certificate of trust of the Issuer with the Secretary of State of the
State of Delaware, compliance by the Company with the terms of the
foregoing and the application of the proceeds from the sale of the
Preferred Securities as contemplated by the Offering Memorandum do not
and will not (A) violate the charter or by-laws of the Company or any
Subsidiaries or (B) violate any federal law of the United States or law
of the State of New York applicable to the Company or its Material
Subsidiaries or the General Corporation Law of the State of Delaware;
PROVIDED that, insofar as the performance by the Company of its
obligations under the Indenture and the Debentures is concerned, such
counsel need express no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights.
(xi) The execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, this Agreement and
the Registration Rights Agreement, the issuance and sale of the
Preferred Securities by the Issuer in accordance with the terms of this
Agreement, and the consummation by the Issuer of the other transactions
contemplated hereby and thereby, will not (i) violate any federal law
of the United States or law of the State of New York or the State of
Delaware applicable to the Issuer or (ii) conflict with the Guarantee
Agreement or the Operative Documents, except that such counsel need
express no opinion in this paragraph (xii) with respect to any state
securities or "blue sky" laws.
(xii) The Company and each Subsidiary other than BankUnited,
FSB, has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Florida,
with full corporate power and authority to own its properties and
conduct is business as described in the Offering Memorandum.
(xiii) BankUnited, FSB is a federally chartered savings bank
duly organized under the laws of the United States, its deposits are
insured by the FDIC and is authorized to do business as a federally
chartered savings bank under the laws of the United States, and has all
corporate power and authority to own its properties and conduct its
business as presently conducted, except where the failure to have such
corporate power and authority would not, individually or in the
aggregate with all other failures, have a Material Adverse Effect.
(xiv) Each of the Company and the Subsidiaries are duly
qualified or licensed and in good standing as a foreign corporation in
each jurisdiction in which the ownership or leasing of its properties
or character of its operations makes such qualification necessary,
23
except where failure to obtain such qualification, license or good
standing would not, individually or in the aggregate with all other
failures, have a Material Adverse Effect.
(xv) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and were not issued in violation of the preemptive
rights of any other stockholder of the Company; and all of the issued
and outstanding shares of capital stock of each of the Company's
Material Subsidiaries are owned of record by the Company or one or more
of its subsidiaries, and all shares of such capital stock are duly and
validly issued, fully paid and non-assessable (except to the extent
provided in 12 U.S.C. ss.55 or any comparable provision of state law).
(xvi) The Company has an authorized capitalization at each
date as set forth in the Offering Memorandum.
(xvii) No approval, authorization, consent or order of or
filing with any federal or District of Columbia governmental or
regulatory commission, board, body, authority or agency is required in
connection with the offering, issuance or sale of the Guarantee and the
Debentures by the Company or is required for the valid authorization,
execution, delivery and performance by the Company of the Operative
Documents or the consummation by the Company of the transactions
contemplated therein, other than such authorizations as may be required
by the securities or "blue sky" laws of the various states in
connection with the offer and sale of the Guarantee and the Debentures
or by the federal and state securities laws in connection with the
registration obligations under the Registration Rights Agreement.
(xviii) The execution and delivery by the Company of, and the
performance by the Company under, this Agreement, the Trust Agreement,
the Indenture, the Debentures, the Guarantee, the Expense Agreement and
the Registration Rights Agreement, the consummation by the Company of
the transactions contemplated hereby and thereby, the filing of the
certificate of trust of the Issuer with the Secretary of State of the
State of Delaware, compliance by the Company with the terms of the
foregoing and the application of the proceeds from the sale of the
Preferred Securities as contemplated by the Offering Memorandum do not
and will not (A) conflict with or result in any breach of, or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would constitute a breach of or default under),
(1) any provision of any Agreement or Instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by which
any of them or their respective properties may be bound or affected,
except any such breaches or defaults as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect
or (2) any federal or New York law, regulation or rule or the General
Corporation Law of the State of Delaware or Florida, or any decree,
judgment or order of any federal or state governmental authority known
to such counsel applicable to the Company or any of its Material
Subsidiaries; (B) to the best of such counsel's knowledge result in, or
require the creation or imposition of, any material lien upon or with
respect to any of the properties now owned or hereafter acquired by the
Company or any of its Subsidiaries.
24
(xix) To the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in breach of, or in default
under (nor has any event occurred which with notice, lapse of time, or
both would constitute a breach of, or default under), (A) any Agreement
or Instrument to which the Company or any of its subsidiaries is a
party or by which any of them or their respective properties may be
bound or affected or (B) any law, regulation or rule or any decree,
judgment or order applicable to the Company or any of its subsidiaries,
except any such breaches or defaults of a type referred to in (A) or
(B) above which would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or a material adverse
effect on the ability of the Company to consummate the transactions
contemplated by this Agreement, the Trust Agreement, the Indenture, the
Debentures, the Guarantee, the Expense Agreement and the Registration
Rights Agreement.
(xx) To the best of such counsel's knowledge, there are no
Agreements of a character which are required to be summarized or
described in the Offering Memorandum which have not been so filed,
summarized or described.
(xxi) To the best of such counsel's knowledge, there are no
actions, suits or proceedings pending or threatened against the Company
or any of its subsidiaries or any of their respective properties, at
law or in equity or before or by any court, governmental authority or
administrative or regulatory authority which are required to be
summarized or described in the Offering Memorandum but are not so
summarized or described.
(xxii) The Company is duly registered as a unitary savings and
loan holding company under the Home Owners Loan Act, as amended; the
deposit accounts of each of the Company's banking subsidiaries is
insured by the Savings Association Insurance Fund of the FDIC to the
fullest extent permitted by law and the rules and regulations of the
FDIC, and no proceedings for the termination of such insurance are
pending or, to the best of such counsel's knowledge, threatened; and
neither the Company nor any of its Subsidiaries is party to or
otherwise the subject of any consent decree, memorandum of
understanding, or written agreement as defined in the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C.
1818(e)(1)(A)(i)).
In addition, such counsel shall state that, as counsel to the
Company, they reviewed the Offering Memorandum and the documents
incorporated or deemed incorporated by reference therein (the "Exchange
Act Documents"), participated in the preparation of the Offering
Memorandum and the Exchange Act Documents and in discussions with the
Initial Purchaser and representatives of the Company, its special
counsel and its independent public accountants and advised the Company
as to the requirements of the Securities Act and the applicable rules
and regulations thereunder. Such counsel shall also state that they
reviewed certificates of certain officers of the Company, and the
letter from the Company's independent accountants. Such counsel shall
state that nothing came to their attention that has caused them to
believe that any part of the Offering Memorandum (including the
Exchange Act Documents) contained any untrue statement of a material
fact
25
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
Such counsel may also state that the limitations inherent in
the independent verification of factual matters are such, however, that
they do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum or any
amendment or supplement thereto, except for those made under the
captions "BankUnited Financial Corporation," "Description of the Series
A Guarantee," "Relationship Among the Series A Preferred Securities,
the Series A Subordinated Debentures, the Expense Agreement and the
Series A Guarantee", "Certain Federal Income Tax Consequences" and
"ERISA Considerations", in the Offering Memorandum, and any comparable
provisions in any amendment or supplement to the Offering Memorandum
insofar as they relate to provisions of documents or legal matters
therein described. Also, such counsel may state that they do not
express any opinion or belief as to the financial statements and
schedules or other financial and statistical data contained in the
Offering Memorandum.
Such counsel may rely as to certain matters on information
obtained from public officials, officers of the Company and other
sources believed by such counsel to be responsible, and shall assume
that the Indenture has been duly authorized, executed and delivered by
the Trustee, that the Trustee's certificates of authentication of the
Debentures have been duly manually signed by one of the Trustee's
authorized officers, and that the signatures on all documents examined
by such counsel are genuine, assumptions which they will not have
independently verified.
The foregoing opinion of such counsel may be limited to the
federal laws of the United States, the laws of the State of Florida,
the laws of the State of New York and the General Corporation Law of
the State of Delaware, and may state that such counsel expresses no
opinion as to the effect of the laws of any other jurisdiction.
Such counsel may state that their opinion is delivered to the
Initial Purchaser as counsel for the Company and is solely for the
Initial Purchaser and their counsel's benefit.
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the Securities as
counsel for the Initial Purchaser may reasonably request. In giving
such opinion, such counsel may rely, as to all matters governed by the
laws of the State of Delaware, on the opinion delivered pursuant to
Section 6(f) hereof by Xxxxxxxx, Xxxxxx & Finger, P.A., and as to all
matters governed by other laws, such counsel may rely on the opinion of
other counsel acceptable to Silver, Xxxxxxxx & Xxxx, L.L.P., so long as
such other counsel's opinion is delivered to the Initial Purchaser and
specifically indicates that it has been prepared for the benefit of the
Initial Purchaser and its counsel. In addition, in giving such opinion,
such counsel may state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries,
26
certificates of trustees of the Issuer and certificates of public
officials, PROVIDED that such certificates have been delivered to the
Initial Purchaser.
(b) At the Closing Time, you shall have received a signed opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A. counsel to the Delaware Trustee, dated as of the
Closing Time, addressed to the Initial Purchaser, in form and substance
reasonably satisfactory to Silver, Xxxxxxxx & Taff, L.L.P., to the effect that:
(i) The Bank of New York (Delaware), a Delaware banking
corporation, has been duly incorporated and is validly existing in good
standing as a banking corporation under the laws of the State of
Delaware and has the corporate power to act as Trustee of a Delaware
business trust under the laws of the State of Delaware, 12 DEL. ss.
3801 ET SEQ.
(c) At the Closing Time, you shall have received a signed opinion of
Xxxxx, Xxxxxx & Xxxxxx LLP, counsel to The Bank of New York, dated as of the
Closing Time, addressed to the Initial Purchaser, in form and substance
reasonably satisfactory to Silver, Xxxxxxxx & Taff, L.L.P., to the effect that:
(i) The Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of New York.
(ii) The execution, delivery and performance by The Bank of
New York, as property trustee (the "Property Trustee") of the Trust
Agreement, the execution, delivery and performance by The Bank of New
York, as Guarantee Trustee, of the Guarantee Agreement and the
execution, delivery and performance by The Bank of New York, as the
Indenture Trustee, of the Indenture have been duly authorized by all
necessary corporate action on the part of the Property Trustee, the
Guarantee Trustee and the Indenture Trustee, respectively. The Trust
Agreement, the Guarantee Agreement and the Indenture have been duly
executed and delivered by the Property Trustee, the Guarantee Trustee
and the Indenture Trustee, respectively, and constitute the legal,
valid and binding obligations of the Property Trustee, the Guarantee
Trustee and the Indenture Trustee, respectively, enforceable against
the Property Trustee, the Guarantee and the Indenture Trustee,
respectively, in accordance with their terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, receivership or similar laws
relating to the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of the Trust
Agreement, the Guarantee Agreement and the Indenture by the Property
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively,
do not conflict with or constitute a breach of the applicable
organizational documents or by-laws of the Property Trustee, the
Guarantee Trustee or the Indenture Trustee, respectively, or the terms
of any indenture or other agreement or instrument known to such counsel
and to which the Property Trustee, the Guarantee Trustee or the
Indenture Trustee, respectively, is a party or is bound or any
27
judgement, order or decree known to such counsel to be applicable to
the Property Trustee, the Guarantee Trustee or the Indenture Trustee,
respectively, of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Property
Trustee, the Guarantee Trustee or the Indenture Trustee, respectively.
(iv) No consent, approval or authorization of, or registration
with or notice to, any federal or New York State banking authority is
required for the execution, delivery or performance by the Property
Trustee, the Guarantee Trustee or the Indenture Trustee of the Trust
Agreement, the Guarantee Agreement or the Indenture, respectively.
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the Securities as
counsel for the Initial Purchaser may reasonably request. In giving
such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of Delaware, the
law of the State of New York and the federal law of the United States,
upon the opinions of counsel satisfactory to counsel for the Initial
Purchaser. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its
subsidiaries, certificates of trustees of the Issuer and certificates
of public officials; PROVIDED that such certificates have been
delivered to the Initial Purchaser.
(d) At the Closing Time, you shall have received a signed opinion of
Kronish, Lieb, Weiner & Xxxxxxx LLP, special United States tax counsel to the
Company and the Issuer, dated as of the Closing Time, addressed to the Initial
Purchaser, in form and substance reasonably satisfactory to counsel for the
Initial Purchaser, to the effect that:
(i) The Issuer will not be characterized as an association
taxable as a corporation for United States federal income tax purposes.
(ii) The Debentures will constitute indebtedness of the
Company.
(iii) Subject to the qualifications set forth therein, the
statements made in the Offering Memorandum under the captions "Certain
Federal Income Tax Consequences" and "Certain Federal Income Tax
Consequences Applicable to Additional Series A Preferred Securities",
fairly present in all material respects the principal United States
federal income tax consequences of an investment in the Preferred
Securities.
(iv) The statements made in the Offering Memorandum under the
captions "Certain Federal Income Tax Consequences", "Certain Federal
Income Tax Consequences Applicable to Additional Series A Preferred
Securities", "Risk Factors Right to Defer Interest Payment Obligation;
Tax Consequences; Market Price Consequences" and "Risk Factors -
Possible Tax Law Changes Affecting The Series A Preferred Securities"
fairly present and constitute a fair and accurate summary of the legal
matters and conclusions addressed therein in all material respects.
28
(e) At the Closing Time, you shall have received a signed opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Issuer and the
Company, dated as of the Closing Time, together with signed or reproduced copies
of such opinion for the Initial Purchaser, in form and substance reasonably
satisfactory to counsel for the Initial Purchaser, to the effect set forth
below.
(i) The Issuer has been duly created and is validly existing
in good standing as a business trust under the Delaware Act, and all
filings required under the laws of the State of Delaware with respect
to the creation and valid existence of the Issuer as a business trust
have been made.
(ii) Under the Delaware Act and the Trust Agreement, the
Issuer has the trust power and authority to own its property and
conduct its business, all as described in the Offering Memorandum.
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable against
the Company and the Trustees, in accordance with its terms, subject, as
to enforcement, to the effect upon the Trust Agreement of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws
relating to the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on
the enforceability of provisions relating to indemnification or
contribution.
(iv) Under the Delaware Act and the Trust Agreement, the
Issuer has the trust power and authority (i) to execute and deliver,
and to perform its obligations under, this Agreement and the
Registration Rights Agreement and (ii) to issue and perform its
obligations under the Preferred Securities.
(v) Under the Delaware Act and the Trust Agreement, the
execution and delivery by the Issuer of this Agreement and the
Registration Rights Agreement, and the performance by the Issuer of its
obligations hereunder and thereunder, have been duly authorized by all
necessary trust action on the part of the Issuer.
(vi) The Preferred Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable undivided
beneficial interests in the assets of the Issuer and are entitled to
the benefits of the Trust Agreement. The holders of the Preferred
Securities, as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation
Law of the State of Delaware. Such counsel may note that the holders of
Preferred Securities may be obligated, pursuant to the Trust Agreement,
(i) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of
certificates for Preferred Securities and the issuance
29
of replacement certificates for Preferred Securities, and (ii) to
provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers
under the Trust Agreement.
(vii) Under the Delaware Act and the Trust Agreement, the
issuance of the Preferred Securities is not subject to preemptive
rights.
(viii) The issuance and sale by the Issuer of the Preferred
Securities, the execution, delivery and performance by the Issuer of
this Agreement and the Registration Rights Agreement, the consummation
by the Issuer of the transactions contemplated hereby and thereby and
compliance by the Issuer with its obligations hereunder and thereunder,
and the performance by the Company, as sponsor, of its obligations
under the Trust Agreement (A) do not violate (i) any of the provisions
of the certificate of trust of the Issuer or the Trust Agreement or
(ii) any applicable Delaware law or Delaware administrative regulation
(except that such counsel need express no opinion with respect to the
securities laws of the State of Delaware) and (B) do not require any
consent, approval, license, authorization or validation of, or filing
or registration with, any Delaware legislative, administrative or
regulatory body under the laws or administrative regulations of the
State of Delaware (except that such counsel need express no opinion
with respect to the securities laws of the State of Delaware).
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the Securities as
counsel for the Initial Purchaser may reasonably request. In giving
such opinion, such counsel may state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its
subsidiaries, certificates of trustees of the Issuer and certificates
of public officials; PROVIDED that such certificates have been
delivered to the Initial Purchaser.
(f) At the Closing Time, you shall have received the favorable opinion
of Silver, Xxxxxxxx, & Xxxx, L.L.P., counsel for the Initial Purchaser, dated as
of the Closing Time, addressed to the Initial Purchaser, to the effect that the
opinions delivered pursuant to Sections 6(a), 6(b), 6(c), 6(d) and 6(e) appear
on their face to be appropriately responsive to the requirements of this
Agreement. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, upon the opinions of counsel satisfactory to you. Such counsel may also
state that they have relied, to the extent they deem proper, upon certificates
of officers of the Company and certificates of public officials.
(g) At the Closing Time, (i) the Offering Memorandum and the Consent
Solicitation documents, as they may then be amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, (ii)
except as may be disclosed in the Offering Memorandum and the Consent
Solicitation documents, there shall not have been, since the respective dates as
of which
30
information is given in the Offering Memorandum and the Consent Solicitation
documents, any material adverse change in the financial condition, properties,
assets, business, results of operations or prospects of the Company and its
subsidiaries and the Issuer taken as a whole, (iii) each of the Company and the
Issuer shall have complied in all material respects with all agreements and
satisfied in all material respects all conditions on its part to be performed or
satisfied at or prior to the Closing Time and (iv) the representations and
warranties of the Company and the Issuer set forth in Section 1(a) shall be
accurate in all material respects as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate of (x)
the Chief Executive Officer or an Executive Vice President of the Company and
(y) the Chief Financial Officer of the Company, dated as of the Closing Time, to
such effect. At the Closing Time, you shall also have received a certificate
signed by an Administrative Trustee, dated as of the Closing Time, to such
effect.
(h) At the time that this Agreement is executed by the Company, you
shall have received from Price Waterhouse a letter, dated such date, in form and
substance reasonably satisfactory to you and Price Waterhouse confirming that
they are independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder, and otherwise satisfactory to you.
(i) At the Closing Time, you shall have received from Price Waterhouse
a letter, in form and substance reasonably satisfactory to you and Price
Waterhouse and dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letters furnished pursuant to Section 6(i) hereof,
except that the specified date referred to shall be a date not more than five
days prior to the Closing Time.
(j) At the Closing Time, counsel for the Initial Purchaser shall have
been furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Securities as contemplated in this Agreement and in order to
evidence the accuracy and completeness of any of representations, warranties or
statements of the Company and the Issuer, the performance of any of the
covenants of the Company and the Issuer, or the fulfillment of any of the
conditions herein contained; and all proceedings by the Company and the Issuer
at or prior to the Closing Time in connection with the authorization, issuance
and the sale of the Securities as contemplated in this Agreement shall be
reasonably satisfactory in form and substance to you and to counsel for the
Initial Purchaser.
(k) At the Closing Time, the Issuer and the Company shall have executed
and delivered the Registration Rights Agreement, and the Registration Rights
Agreement shall be in full force and effect.
(l) At the Closing time, there shall not be any pending or threatened
legal or governmental proceedings against the Company or the Issuer with respect
to any of the transactions contemplated in this Agreement.
(m) The Preferred Securities shall have been approved by the NASD as
being eligible for trading in the PORTAL market.
31
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company and the Issuer at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 5 hereof.
Notwithstanding any such termination, the provisions of Section 7 hereof shall
remain in effect. The Initial Purchaser may in its sole discretion waive
compliance with any conditions to its obligations hereunder.
Section 7. INDEMNIFICATION
(a) The Company and the Issuer, jointly and severally, agree to
indemnify, defend and hold harmless the Initial Purchaser, and any person who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any loss, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Initial Purchaser or controlling person may incur arising out of
or is based upon any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Offering Memorandum or in the Offering
Memorandum (or any amendment or supplement thereto or any Exchange Act Document)
or, arises out of or is based upon any omission or alleged omission to state a
material fact necessary to make the statements made in such Preliminary Offering
Memorandum or in such Offering Memorandum (or any amendment or supplement
thereto or any Exchange Act Document) not misleading, except insofar as any such
loss, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by or on behalf of the Initial
Purchaser to the Company expressly for use with reference to the Initial
Purchaser in such Preliminary Offering Memorandum or in such Offering Memorandum
(or any amendment or supplement thereto) or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information necessary to make such information not misleading; PROVIDED FURTHER
that the foregoing indemnification with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of the Initial Purchaser (or any
person controlling the Initial Purchaser) from whom the person asserting any
such losses, claims, damages or liabilities purchased any of the Preferred
Securities if a copy of the Offering Memorandum (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of the Initial Purchaser in the initial resale
to such person, if such is required by law, at or prior to the written
confirmation of the sale of such Preferred Securities to such person and if the
Offering Memorandum (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability, unless such failure
resulted from non-compliance by the Company with Section 4(c). For purposes of
the last proviso to the immediately preceding sentence, the term "Offering
Memorandum" shall not be deemed to include the documents incorporated therein by
reference, and the Initial Purchaser shall not be obligated to send or give any
supplement or amendment to any document incorporated by reference in any
Preliminary Offering Memorandum or the Offering Memorandum to any person.
If any action is brought against the Initial Purchaser or controlling
person in respect of which indemnity may be sought against the Company or the
Issuer pursuant to the foregoing
32
paragraph, the Initial Purchaser shall promptly notify the Company in writing of
the institution of such action and the Company shall assume the defense of such
action, including the employment of counsel and payment of expenses. The Initial
Purchaser or controlling person shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of the Initial Purchaser or such controlling person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such action or the Company shall not have
employed counsel to have charge of the defense of such action or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel in any
one action or series of related actions in the same jurisdiction representing
the indemnified parties who are parties to such action). Anything in this
paragraph to the contrary notwithstanding, the Company shall not be liable for
any settlement of any such claim or action effected without its written consent.
(b) The Initial Purchaser agrees to indemnify, defend and hold harmless
the Company and the Issuer, their respective directors and officers and any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any loss, expense, liability of
claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by or on behalf of the
Initial Purchaser to the Company expressly for use with reference to the Initial
Purchaser in the Offering Memorandum (or in the Offering Memorandum as amended
or supplemented), or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information necessary
to make such information not misleading.
If any action is brought against the Company, the Issuer or any such
person in respect of which indemnity may be sought against the Initial Purchaser
pursuant to the foregoing paragraph, the Company, the Issuer or such person
shall promptly notify the Initial Purchaser in writing of the institution of
such action and the Initial Purchaser shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Company, the
Issuer or such person shall have the right to employ its own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of the
Company, the Issuer or such person unless the employment of such counsel shall
have been authorized in writing by the Initial Purchaser in connection with the
defense of such action or the Initial Purchaser shall not have employed counsel
to have charge of the defense of such action or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it which are different from or additional to those available to the Initial
Purchaser (in which case the Initial Purchaser shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Initial Purchaser and paid as incurred (it being understood, however, that the
Initial Purchaser shall not be liable for the
33
expenses of more than one separate counsel in any one action or series of
related actions in the same jurisdiction representing the Indemnified parties
who are parties to such action). Anything in this paragraph to the contrary
notwithstanding, the Initial Purchaser shall not be liable for any settlement of
any such claim or action affected without the written consent of the Initial
Purchaser.
(c) If the indemnification provided in this Section 7 is unavailable to
an indemnified party under subsections (a) and (b) of this Section 7 in respect
of any losses, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Issuer on the one hand and the Initial Purchaser on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Issuer on the one hand and of the
Initial Purchaser on the other in connection with the statements or omissions
which resulted in such losses, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Issuer on the one hand and the Initial Purchaser on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering of the Securities (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the Issuer bear to the
underwriting discounts and commissions received by the Initial Purchaser. The
relative fault of the Company and the Issuer on the one hand and of the Initial
Purchaser on the other shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company, the
Issuer or by the Initial Purchaser and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any claim or action.
(d) The Company, the Issuer and the Initial Purchaser agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in subsection
(c) above. Notwithstanding the provisions of this Section 7, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which the Securities distributed by it exceeds the
amount of any damages which such Initial Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
7, and the covenants, warranties and representations of the Company and the
Issuer contained in this Agreement, shall remain in full force and effect
regardless of any investigation made by or on
34
behalf of the Initial Purchaser, or any person who controls the Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors and officers or
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Securities. The Company and the
Initial Purchaser agree promptly to notify the other of the commencement of any
litigation or proceeding against it and, in the case of the Company, against any
of the Company's officers and directors, in connection with the issuance and
sale of the Securities, or in connection with the Offering Memorandum.
Section 8. TERMINATION OF AGREEMENT. The obligations of the Initial
Purchaser hereunder shall be subject to termination in the absolute discretion
of the Initial Purchaser if, at any time prior to the time of purchase, trading
in securities on the New York Stock Exchange shall have been suspended or
minimum prices shall have been established on the New York Stock Exchange, or if
a banking moratorium shall have been declared either by the United States or New
York State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in the reasonable judgment of the
Initial Purchaser, to make it impracticable to market the Securities.
If the Initial Purchaser elects to terminate this Agreement as provided
in this Section 8, the Company shall be notified promptly in writing delivered
by facsimile or telegram.
If the sale to the Initial Purchaser of the Securities, as contemplated
by this Agreement, is not carried out by the Initial Purchaser for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply with any of the terms of this Agreement, the
Company shall not be under any obligation or liability hereunder or thereunder
(except to the extent provided in Sections 5 and 7 hereof), and the Initial
Purchaser shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 7 hereof) or to one another
hereunder.
This Agreement may also terminate pursuant to the provisions of Section
6 with the effect stated in such Section.
Section 9. NOTICES. All notices and other communications under the
Agreement shall be in writing and shall be deemed to have been duly given, upon
receipt, if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Initial Purchaser shall be directed to FBR,
Potomac Tower, 0000 00xx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000
(telecopier no.: (000) 000-0000), attention: Xxxxx Xxxxxxxxx, with a copy to
Silver, Xxxxxxxx & Taff, L.L.P., 0000 Xxx Xxxx Xxxxxx, X.X. 0xx Xxxxx,
Xxxxxxxxxx, X.X. 00000 (telecopier no.: (000) 000-0000), attention: Xxxx X.
Xxxxxxxxxx, P.C. or Xxxxxx X. Xxxxxxxxx, P.C.; and notices to the Company shall
be directed to if at BankUnited Financial Corporation, 000 Xxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxx 00000, (telecopier no.: (305) 569- 2057), attention of Xxx
Xxxxx,
00
with a copy to Stuzin & Camner, 000 Xxxxxxxx Xxx, Xxxxx Xxxxxx, Xxxxxxx 00000
(telecopier no.: (000) 000-0000), attention: Xxxxxx Xxxxxx, Esq.
Section 10. PARTIES. This Agreement is made solely for the benefit of
the Initial Purchaser, the Company and the Issuer and, to the extent expressed,
any person who controls the Company, the Issuer or the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the directors of the Company and the Issuer, their officers, employees
and trustees, and their respective executors, administrators, successors and
assigns and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include the
purchaser, as such purchaser, from any Initial Purchaser of the Securities.
Section 11. GOVERNING LAW AND TIME. This Agreement shall be governed by
the laws of the State of Florida, without giving effect to the provisions
thereof relating to conflicts of law. Specified times of the day refer to New
York City time.
Section 12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Issuer and the
Initial Purchaser in accordance with its terms.
Very truly yours,
BANKUNITED CAPITAL
By: BankUnited Financial Corporation
as sponsor
By: ---------------------------------
Name:
Title:
BANKUNITED FINANCIAL CORPORATION
By: ---------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
BY: FRIEDMAN, BILLINGS, XXXXXX & CO.
-------------------------------
Name:
Title:
37
