EXHIBIT 4.8
THIS SECOND SUPPLEMENTAL INDENTURE dated as of December 3, 1996, among
BANK UNITED CORP., formerly named USAT Holdings Inc., a Delaware corporation
(the "Company"), BNKU HOLDINGS, INC., a Delaware corporation ("BNKU Holdings")
and THE BANK OF NEW YORK, a banking corporation duly organized and existing
under the laws of the State of New York, as trustee under the Indenture referred
to below (the Trustee").
WITNESSETH
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as
of May 15, 1993, and a First Supplemental Indenture dated as of January 23, 1995
(collectively, the "Indenture"), relating to the Company's 8.05% Senior Notes
due May 15, 1998 (the "Securities");
WHEREAS, substantially all of the Company's consolidated properties and
assets consist of Two Million Eight Hundred Seventeen Thousand Seven Hundred
Sixty Eight (2,817,768) shares (the "Shares") of common stock, $0.01 par value,
of Bank United, a federally chartered savings bank, representing all of the
outstanding common stock of Bank United;
WHEREAS, BNKU Holdings, a Wholly Owned Subsidiary of the Company, was
formed for the sole purpose of holding the Shares;
WHEREAS, the Company intends to enter into a Stock Transfer Agreement with
BNKU Holdings, under which it will transfer the Shares to BNKU Holdings;
WHEREAS, Section 801 of the Indenture requires that in connection with the
transfer of the Shares BNKU Holdings shall assume by an indenture supplemental
to the Indenture the due and punctual payment of the principal (and premium, if
any) and interest on the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed; and
WHEREAS, the consent of the Holders of the Outstanding Securities is not
required to enter into this Second Supplemental Indenture;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the Company, BNKU Holdings and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
Section 1. SUBSTITUTION AND ASSUMPTION OF OBLIGATIONS. In accordance with
Section 801 of the Indenture, BNKU Holdings hereby assumes the due and punctual
payment of the principal (and premium, if any) and interest on the Securities
and the performance of every covenant of the Indenture on the part of the
Company to be performed or observed.
Section 2. COMPANY TO REMAIN OBLIGATED. Notwithstanding Section 802 of the
Indenture, which provides that the Company shall be relieved of all obligations
and covenants under the Indenture and the Securities upon a transfer of all or
substantially all of its properties and assets as an entirety, the Company shall
take no action with respect to the shares of capital stock of BNKU Holdings that
it would not have been permitted to take with respect to the Shares prior to the
date hereof,
Section 3. MISCELLANEOUS. The Trustee accepts the trusts hereunder and
agrees to perform the same, but only upon the terms and conditions set forth in
the Indenture and in this Second Supplemental Indenture, to all of which the
Company agrees. The provisions of this Second Supplemental Indenture shall
become effective
Section 4. GOVERNING LAW. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York
BANK UNITED CORP.
(CORPORATE SEAL)
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: President
Attest:
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Corporate Secretary
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BNKU HOLDINGS, INC.
(CORPORATE SEAL)
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Corporate Secretary
THE BANK OF NEW YORK
(CORPORATE SEAL)
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
Attest:
By: /s/ Xxxx Xx Xxxxxx
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
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ACKNOWLEDGMENTS
STATE OF TEXAS
COUNTY OF XXXXXX
On the 3rd day of December, 1996, before me personally came Xxxxx X.
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is President of BANK UNITED CORP., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Xxxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires
December 4, 0000
XXXXXXXXXXXXXXX
XXXXX XX XXXXX
XXXXXX XX XXXXXX
Xx the 3rd day of December, 1996, before me personally came Xxxxxxxx
X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of BNKU HOLDINGS, INC., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Xxxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxx
Notary Public, State of Texas
My Commission Expires
December 4, 0000
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XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX
XXXXXX OF NEW YORK
On the 3rd day of December, 1996, before me personally came Xxxx X.
Xxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President of THE BANK OF NEW YORK, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 1998
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