Exhibit 4.7
BANK UNITED CORP.
SERIES B PREFERRED STOCK
August 10, 1999
XXXXXX BROTHERS INC.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bank United Corp., a Delaware corporation (the "Company"), is issuing today
2,000,000 shares of its Series B Preferred Stock, liquidation preference of $50
per share (the "Preferred Stock"), pursuant to a Certificate of Designations
filed with the Secretary of State of the State of Delaware (the "Certificate of
Designations"). Capitalized terms used but not defined in this (this "Agreement") shall have the meanings set forth in the
Certificate of Designations.
The Remarketing (as defined below) of the Preferred Stock is provided for
in the Certificate of Designations. As used in this Agreement, the term
"Remarketed Preferred Stock" means the Preferred Stock subject to the
Remarketing on the fifth Business Day prior to the Purchase Contract Settlement
Date; the term "Remarketing Procedures" means the procedures in connection with
the Remarketing of the Preferred Stock described in the Certificate of
Designations; and the term "Remarketing" means the remarketing of the Remarketed
Preferred Stock pursuant to the Remarketing Procedures.
Section 1. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT. (a) The
Company hereby appoints Xxxxxx Brothers Inc., and Xxxxxx Brothers Inc. hereby
accepts appointment, as exclusive remarketing agent (the "Remarketing Agent")
for the purpose of (i) Remarketing the Remarketed Preferred Stock on behalf of
the holders thereof and (ii) performing such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with and
pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially reasonable efforts
to remarket the Remarketed Preferred Stock tendered or deemed tendered to the
Remarketing Agent in the Remarketing, (ii) to notify the Company promptly of the
Reset Rate and (iii) to carry out such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with the
provisions of the Remarketing Procedures.
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(c) On the third Business Day immediately preceding the Purchase Contract
Settlement Date (the "Remarketing Date"), the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price equal to 100.50% of the
aggregate liquidation preference thereof, the Remarketed Preferred Stock
tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Securities tendered or deemed tendered for purchase at a price of 100.50% of the
aggregate liquidation preference of such Remarketed Preferred Stock prior to
4:00 p.m., New York City time, on the Remarketing Date, the Remarketing Agent
shall determine the Reset Rate, which shall be the rate per annum (rounded to
the nearest one-thousandth (0.001) of one percent per annum) that the
Remarketing Agent determines, in its sole judgment, to be the lowest rate per
annum that will enable it to remarket all Remarketed Preferred Stock tendered or
deemed tendered for Remarketing.
(e) If none of the holders of Remarketed Preferred Stock elects to have
Remarketed Preferred Stock Remarketed in the Remarketing, the Remarketing Agent
shall, in its sole discretion, determine the rate that would have been
established had a Remarketing of all the Preferred Stock been held on the
Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 p.m., New York City time, on the Remarketing Date, the
Remarketing Agent is unable to remarket all Remarketed Preferred Stock tendered
or deemed tendered for purchase, a failed Remarketing (the "Failed Remarketing")
shall be deemed to have occurred, and the Remarketing Agent shall so advise by
telephone the Depositary and the Company. If a Failed Remarketing occurs, the
Reset Rate will be equal to (i) the "AA" Composite Commercial Paper Rate on the
Remarketing Date, plus (ii) a spread as set forth in the Certificate of
Designations.
(g) By approximately 4:30 p.m., New York City time, on the Remarketing
Date, provided that there has not been a Failed Remarketing, the Remarketing
Agent shall advise, by telephone (i) the Depositary and the Company of the Reset
Rate determined in the Remarketing and the number of shares of Remarketed
Preferred Stock sold in the Remarketing, (ii) each purchaser (or the Depositary
Participant thereof) of the Reset Rate and the number of shares of Remarketed
Preferred Stock such purchaser is to purchase and (iii) each purchaser to give
instructions to its Depositary Participant to pay the purchase price on the
Purchase Contract Settlement Date in same day funds against delivery of the
shares of Remarketed Preferred Stock purchased through the facilities of the
Depositary.
(h) The Remarketing Agent shall remit (i) to the Collateral Agent proceeds
of the Remarketed Preferred Stock subject to the Pledge Agreement in an amount
equal to 100% of the aggregate liquidation preference of such Remarketed
Preferred Stock and (ii) to the Depositary Participant of the seller of
Remarketed Preferred Stock not subject to the Pledge Agreement proceeds of such
Remarketed Preferred Stock in an amount equal to 100% of the aggregate
liquidation preference of such Remarketed Preferred Stock.
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2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
hereby represents and warrants to the Remarketing Agent (i) on and as of the
date hereof, (ii) on and as of the date the Prospectus or other Remarketing
Materials (each, as defined in Section 2(a) below) which are first distributed
in connection with the Remarketing (the "Commencement Date"), (iii) on and as of
the Remarketing Date and (iv) on and as of the Purchase Contract Settlement Date
that:
(a) Registration statements on Form S-3 (File Nos. 333-75937 and
333-83797) and an amendment or amendments thereto with respect to the
initial offering of the Preferred Stock have (i) been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act; and a
registration statement or registration statements on Form S-3, if required
to be filed in connection with the Remarketing, may also be prepared by the
Company in conformity with the requirements of the Securities Act and the
Rules and Regulations and filed with the Commission under the Securities
Act. Copies of such registration statements that have become effective and
the amendment or amendments to such registration statements have been
delivered or made available by the Company to Xxxxxx Brothers Inc. As used
in this Agreement, "Effective Time" means the date and time as of which the
last of such registration statements that have become effective or may be
filed, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the date of
the Effective Time of such last registration statement; "Preliminary
Prospectus" means each prospectus included in such last registration
statement, or amendment thereto, before it became effective under the
Securities Act and any prospectus filed by the Company with your consent
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such last registration statement, as amended at its
Effective Time, including documents incorporated by reference therein at
such time and, if applicable, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations, including any information deemed to be part of such
Registration Statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; and "Prospectus" means such
final prospectus, as first filed pursuant to Rule 424(b) of the Rules and
Regulations. Reference made herein to any Preliminary Prospectus, the
Prospectus or any other information furnished by the Company to the
Remarketing Agent for distribution to investors in connection with the
Remarketing (the "Remarketing Materials") shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, or, in the case of
Remarketing Materials, referred to as incorporated by reference therein,
and any reference to any amendment or supplement to any Preliminary
Prospectus, the Prospectus or the Remarketing Materials shall be deemed to
refer to and include any document filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of such
Preliminary Prospectus or the Prospectus incorporated by reference therein
pursuant
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to Item 12 of Form S-3 or, if so incorporated, the Remarketing Materials,
as the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement.
(b) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform) in all respects to the requirements of the
Securities Act and the Rules and Regulations, and the Registration
Statement, the Prospectus and the Remarketing Materials do not and will
not, as of the Effective Date (as to the Registration Statement and any
amendment thereto), as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) and as of the Commencement Date,
Remarketing Date and Purchase Contract Settlement Date (as to any
Remarketing Materials) contain any 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 not misleading; provided that no representation
and warranty is made as to information contained in or omitted from the
Registration Statement, the Prospectus or the Remarketing Materials in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for inclusion therein; and
the Commission has not issued an order preventing or suspending the use of
the Registration Statement, any Preliminary Prospectus, the Prospectus or
the Remarketing Materials.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any 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 not misleading.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus or in
any Remarketing Materials, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or is
subject to no material
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liability or disability by reason of the failure to be so qualified in any
such jurisdiction; and each subsidiary (as defined in Section 14 hereof) of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation.
(e) Bank United (the "Bank") has been duly organized and is validly
existing as a federally chartered savings bank in good standing under the
laws of the United States, and has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Final Prospectus. Each subsidiary of the Bank has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the power and authority to own,
lease and operate its properties and to conduct its business as described
in the Final Prospectus.
(f) The Company has an authorized capitalization as set forth in the
Prospectus and in any Remarketing Materials; all of the issued shares of
capital stock of the Company and each wholly-owned subsidiary of the
Company (including, without limitation, the Bank) have been duly and
validly authorized and issued and are fully paid and non-assessable; and
all of the issued shares of capital stock of each subsidiary of the
Company, including without limitation the Bank, except as set forth in the
Prospectus, are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims.
(g) The Bank constitutes the only "significant subsidiary" (as such
term is defined in Rule 1-02 of Regulation S-X) of the Company (a
"Significant Subsidiary").
(h) The Corporate PIES have been duly authorized by the Company, and
when duly executed by the Company (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by the Company
and, upon payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Purchase Contract Agreement
and enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles,
regardless of whether enforcement is considered in a proceeding in equity
or at law (the "Bankruptcy Exceptions"), and an implied covenant of good
faith and fair dealing.
(i) The shares of Preferred Stock and Remarketed Preferred Stock have
been duly authorized by the Company and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued, fully
paid and non-assessable.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
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(k) The Purchase Contract Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent) and
delivered by the Company, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(l) The Pledge Agreement has been duly authorized by the Company and,
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Purchase Contract Agent, the Securities
Intermediary and the Collateral Agent) and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except as the enforcement thereof
may be limited by the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(m) The Remarketed Preferred Stock, the Certificate of Designations
and the , when the Remarketed Preferred Stock is
delivered pursuant to this Agreement, will conform to the descriptions
thereof contained in the Prospectus and in any Remarketing Materials.
(n) The execution, delivery and performance of this Agreement and the
Certificate of Designations by the Company, the consummation by the Company
of the transactions contemplated hereby and thereby and the issuance and
delivery of the Preferred Stock and the Remarketed Preferred Stock
(collectively, the "Transactions") did not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets; and except for such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Act, the Exchange Act and applicable state securities laws in connection
with the initial distribution of the Preferred Stock and the Remarketed
Preferred Stock or the Remarketing, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the Transactions.
(o) There are no contracts, agreements or understandings between (i)
the Company and (ii) 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 registered pursuant to the Registration Statement or in any
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securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(p) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or in any Remarketing
Materials, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, which
could, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole or upon the ability of the Company to
perform its obligations under this Agreement (each, a "Material Adverse
Effect"), otherwise than as set forth or contemplated in the Prospectus and
in any Remarketing Materials; and, since such date, there has not been any
material change in the consolidated share capital or long-term debt of the
Company and its subsidiaries or the consolidated share capital or long-term
debt of any Significant Subsidiary or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
and in any Remarketing Materials.
(q) The financial statements filed as part of the Registration
Statement or incorporated by reference in the Prospectus or as presented in
any Remarketing Materials present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved; and the supporting schedules included or
incorporated by reference in the Prospectus or in any Remarketing Materials
present fairly the information required to be stated therein.
(r) Deloitte & Touche LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein or in any Remarketing Materials and who
have delivered the letter referred to in Section 5(g) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(s) The Company and each Significant Subsidiary has good and
marketable title in fee simple to such of its fixed assets as are real
property and good and marketable title to its other assets reflected in the
most recent consolidated balance sheet incorporated by reference in the
Prospectus or in any Remarketing Materials, except properties and assets
that are leased or that are sold or otherwise disposed of in the ordinary
course of business after the date of said balance sheet, subject to no
mortgages, liens, charges or encumbrances of any kind whatsoever
(collectively, the "Liens").
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(t) Other than as set forth or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or to which any property
or asset of the Company or any of its subsidiaries is the subject which
could reasonably be expected individually or in the aggregate to have a
Material Adverse Effect; and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others. Neither the Company nor any of its subsidiaries is
a party to any written agreement or memorandum of understanding with, or
commitment letter or similar undertaking to, or subject to any order or
directive issued by, or a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any federal
or state goverment agency or authority with responsibility for the
supervision or regulation of depository institutions or their holding
companies or the insurance of deposits, which in any such case materially
restricts the conduct of its business or in any manner relates to its
capital adequacy, its credit policies or its management, nor has the
Company or any of its subisdiaries been advised by any such regulatory
authority that it is contemplating issuing or requesting any such order,
decree, written agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar undertakings or board
resolutions.
(u) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(v) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(w) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, including, without limitation, the OTS and the FDIC,
is necessary or required for the due authorization, execution and delivery
by the Company of this Agreement or for the performance by the Company of
the Transactions, except such as have been already obtained or will have
been obtained or made prior to the Closing Date (as defined in the
Underwriting Agreement, dated August 4, 1999, between the Company and
Xxxxxx Brothers) or as may be required under the Securities Act or the
Rules and Regulations or state securities laws.
(x) None of the Company nor any Significant Subsidiary has any
material contingent liability which is not disclosed in the Prospectus.
(y) None of the Company nor any Significant Subsidiary (i) is in
violation of its charter or by-laws or similar constitutive documents, (ii)
is in default in any respect, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject, except where such
defaults, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its properties or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its
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business, except where such violations or failures, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(z) Neither the Company nor any subsidiary of the Company is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission thereunder.
(aa) Each of the Company and each Significant Subsidiary has statutory
authority, franchises and consents free from burdensome restrictions and
adequate for the conduct of the business in which it is engaged.
(bb) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act"), and the rules and regulations of
the Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank
holding company under the BHC Act and the BHC Rules.
(cc) The Prospectus accurately describes the existing limitations on
the payment of dividends by Bank United on its shares of common stock held
by the Company.
3. FEES AND EXPENSES. (a) For the performance of its services as
Remarketing Agent hereunder, the Remarketing Agent shall retain on the Purchase
Contract Settlement Date 0.50% of the amount of the proceeds received in the
Remarketing.
(b) The Company agrees to pay (i) the costs incident to the preparation and
printing of the Registration Statement, Prospectus and any Remarketing Materials
and any amendments or supplements thereto; (ii) the costs of distributing the
Registration Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (iii) the fees and expenses of qualifying the
Remarketed Securities under the securities laws of the several jurisdictions as
provided in Section 4(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Remarketing
Agent); and (iv) all other costs and expenses incident to the performance of the
obligations of the Company hereunder.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees to use its
reasonable best efforts:
(a) To prepare any registration statement or prospectus, if required,
in connection with the Remarketing, in a form approved by the Remarketing
Agent and to file any such prospectus pursuant to the Securities Act within
the period required by the Rules and Regulations; to advise the Remarketing
Agent, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
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effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Remarketing Agent with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Remarketed
Securities; to advise the Remarketing Agent, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of any shares of the Remarketed Preferred
Stock for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement
or the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use
of any Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal.
(b) To furnish or make available promptly to the Remarketing Agent and
to counsel for the Remarketing Agent a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) To deliver or make available promptly to the Remarketing Agent in
New York City a reasonable number of the following documents: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto, (ii) the Prospectus and any amended
or supplemented Prospectus, (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto) and (iv) any Remarketing
Materials; and, if the delivery of a prospectus is required at any time in
connection with the Remarketing and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Remarketing Agent and, upon its request, to
file such document and to prepare and furnish without charge to the
Remarketing Agent and to any dealer in securities a reasonable number of
copies of an amended or supplemented Prospectus which will correct such
statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission.
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(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish or make available a
copy thereof to the Remarketing Agent and counsel for the Remarketing
Agent; and not to file any such amendment or supplement which shall be
disapproved by the Remarketing Agent promptly after reasonable notice
(approval thereof not to be unreasonably withheld).
(f) As soon as practicable after the Effective Date of the
Registration Statement to make generally available to the Company's
security holders and to deliver to the Remarketing Agent an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(g) During a period of five years following the Effective Date of the
Registration Statement, to deliver or make available to the Remarketing
Agent copies of all reports or other communications (financial or other)
furnished to shareholders of the Company, and deliver to the Remarketing
Agent, (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed by the Company with the
Commission or any national securities exchange on which any of the
Remarketed Securities or any class of securities of the Company may be
listed; and (ii) such additional information concerning the business and
financial condition of the Company as the Remarketing Agent may from time
to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to the Company's
shareholders generally or to the Commission).
(h) Promptly from time to time to take such action as the Remarketing
Agent may reasonably request to qualify any shares of the Remarketed
Preferred Stock for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Securities; provided that in connection therewith, the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
5. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. The obligations of
the Remarketing Agent hereunder are subject to the accuracy, on and as of the
date when made, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission;
no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or
12
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) The Remarketing Agent shall not have discovered and disclosed to
the Company on or prior to the Remarketing Date that the Prospectus, the
Registration Statement or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to state
any fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Preferred Stock,
the PIES, the Remarketed Preferred Stock, the Prospectus, each Registration
Statement, the Remarketing Materials and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Remarketing Agent, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Counsel to the Company shall have furnished to the Remarketing
Agent its written opinion, as counsel to the Company, addressed to the
Remarketing Agent and dated the Remarketing Date, in form and substance
satisfactory to the Remarketing Agent, to the effect that:
(i) The Company and each Significant Subsidiary have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation,
with respective power and authority (corporate and other) to own their
respective properties and conduct their businesses as described in the
Prospectus.
(ii) The Company has an authorized capitalization as set forth in
the Prospectus and in any Remarketing Materials, all of the issued
capital shares of the Company and each Significant Subsidiary of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; and all of the issued shares of capital stock
of each Significant Subsidiary (except as set forth or incorporated by
reference in the Registration Statement) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(iii) The Company and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, or is
13
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction.
(iv) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of the
Preferred Stock or the Remarketed Preferred Stock pursuant to the
Company's charter or by-laws or any agreement or other instrument
known to such counsel.
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus or in any Remarketing Materials, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property or asset of
the Company or any of its subsidiaries is subject which could
reasonably be expected individually or in the aggregate to have a
material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge and other
than as set forth in the Prospectus, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
(vi) The Registration Statement was declared effective under the
Securities Act, as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Rules and Regulations specified in such opinion
on the date specified therein and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(vii) The Registration Statement, as of its Effective Date, and
the Prospectus, as of its date, and any further amendments or
supplements thereto, as of their respective dates, made by the Company
prior to the Purchase Contract Settlement Date (other than the
financial statements, related schedules and other financial data
contained therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements of
the Securities Act and the Rules and Regulations.
(viii) The statements contained in the Prospectus under the
captions "Description of the PIES", "Description of the Purchase
Contracts", "Certain Provisions of the Purchase Contracts, the
Purchase Contract Agreement and the Pledge Agreement" and "Description
of the Preferred Stock" insofar as they purport to constitute
summaries of certain terms of documents referred to therein,
constitute accurate summaries of the terms of such documents in all
material respects.
(ix) The shares of Preferred Stock have been duly authorized
14
by the Company and were duly and validly issued, fully paid and
non-assessable.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) The Purchase Contract Agreement has been duly authorized by
the Company and, when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Purchase Contract
Agent) and delivered by the Company, constitutes a valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
the Bankruptcy Exceptions and an implied covenant of good faith and
fair dealing.
(xii) The Pledge Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent,
the Securities Intermediary and the Collateral Agent) and delivered by
the Company, constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by the Bankruptcy Exceptions
and an implied covenant of good faith and fair dealing.
(xiii) The Transactions will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of the Significant Subsidiaries is a party
or by which the Company or any of the Significant Subsidiaries is
bound or to which any of the properties or assets of the Company or
any of the Significant Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any of the Significant Subsidiaries or any statute,
rule or regulation or any order known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of the Significant Subsidiaries or any of their properties or
assets; and, except for the registration of the Preferred Stock and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the Transactions.
(xiv) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the 1940 Act.
15
(xv) Based upon current law and the assumptions stated or
referred to therein, the statements set forth in the Prospectus or in
the Remarketing Materials under the caption "United States Federal
Income Tax Consequences" insofar as they purport to constitute
summaries of matters of United States federal tax laws and regulations
or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the State of New York and the General Corporation Law of the
State of Delaware. Such counsel shall also advise the Remarketing Agent that
although such counsel is not passing upon and assumes no responsibility or
liability for the accuracy, completeness or fairness of the statements contained
in the documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Remarketing
Date, they have no reason to believe that any of such documents (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion), when such documents became effective or were filed
with the Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act, an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the Securities Act or
the Exchange Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when such
documents were so filed, not misleading. Such counsel shall also advise the
Remarketing Agent that although such counsel is not passing upon and, except as
set forth in clauses (viii) and (xv) above, assumes no responsibility or
liability for the accuracy, completeness or fairness of the statements contained
in the Registration Statement, the Prospectus and the Remarketing Materials and
any further amendments and supplements thereto made by the Company prior to such
date, they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus and the Remarketing Materials or any
further amendment or supplement thereto made by the Company prior to such
Remarketing Date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading or that, as of such Remarketing Date, either the Registra-
tion Statement, the Prospectus or the Remarketing Materials or any further
amendment or supplement thereto made by the Company prior to such Remarketing
Date (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact
16
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus or the
Remarketing Materials or required to be described in the Registration Statement,
the Prospectus or the Remarketing Materials which were not filed or incorporated
by reference or described as required.
(e) Counsel to the Purchase Contract Agent shall have furnished to the
Remarketing Agent its written opinion, as counsel to the Purchase Contract
Agent, addressed to the Remarketing Agent and dated the Remarketing Date,
in form and substance satisfactory to the Remarketing Agent, to the effect
that:
(i) The Purchase Contract Agent is duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the jurisdiction of its incorporation with all necessary power
and authority to execute, deliver and perform its obligations under
the Purchase Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement and the authentication and delivery of the PIES have been
duly authorized by all necessary corporate action on the part of the
Purchase Contract Agent. The Purchase Contract Agreement and the
Pledge Agreement have been duly executed and delivered by the Purchase
Contract Agent and constitute the valid and binding agreements of the
Purchase Contract Agent, enforceable against the Purchase Contract
Agent in accordance with their terms, except as the enforcement
thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent does not conflict with or constitute a breach of the charter or
by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any state or federal governmental authority or
agency is required for the execution, delivery or performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement.
(f) Counsel to the Collateral Agent shall have furnished to the
Remarketing Agent its written opinion, as counsel to the Collateral Agent,
and addressed to the Remarketing Agent and dated the Remarketing Date, in
form and substance satisfactory to the Remarketing Agent, to the effect
that:
17
(i) The Collateral Agent is duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the jurisdiction of incorporation with all necessary power and
authority to execute, deliver and perform its obligations under the
Pledge Agreement.
(ii) The execution, delivery and performance by the Collateral
Agent of the Pledge Agreement in its capacity as Collateral Agent and
securities intermediary have been duly authorized by all necessary
corporate action on the part of the Collateral Agent. The Pledge
Agreement has been duly executed and delivered by the Collateral Agent
and constitutes the valid and binding agreement of the Collateral
Agent, enforceable against the Collateral Agent in accordance with its
terms, except as the enforcement thereof may be limited by the
Bankruptcy Exception and an implied covenant of good faith and fair
dealing.
(iii) The execution, delivery and performance of the Pledge
Agreement by the Collateral Agent in its capacity as Collateral Agent
and securities intermediary does not conflict with or constitute a
breach of the charter or by-laws of the Collateral Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any state or Federal governmental authority or
agency is required for the execution, delivery or performance by the
Collateral Agent of the Pledge Agreement.
(g) On the Remarketing Date, the Company shall have furnished to the
Remarketing Agent a letter addressed to the Remarketing Agent and dated
such date, in form and substance satisfactory to the Remarketing Agent, of
Deloitte & Touche LLP, or such other firm of nationally recognized
independent public accountants satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial
information contained in the Prospectus and in the Remarketing Materials.
(h) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of (A) the Company's Chairman of
the Board and President, or its Executive Vice President and (B) its chief
financial officer, stating that:
(i) The representations, warranties and agreements of the Company
in Section 2 are true and correct as of the Remarketing Date; the
Company has complied with all its agreements contained herein; and the
conditions contained in Section 5(a) have been fulfilled;
(ii) (A) Neither the Company, the Bank nor any of the Company's
other subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus or in the Remarketing Materials any loss or interference
with its business from fire,
18
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, otherwise
than as set forth or contemplated in the Prospectus or in the
Remarketing Materials and (B) since the respective dates as of which
information is given in the Prospectus or in the Remarketing
Materials, there has not been any material change in the consolidated
share capital or long-term debt of the Company and its subsidiaries
(including, without limitation, the Bank) or the consolidated share
capital or long-term debt of any Significant Subsidiary (including,
without limitation, the Bank) or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, including without
limitation the Bank (taken as a whole), otherwise than as set forth or
contemplated in the Prospectus or the Remarketing Materials; and
(iii) They have carefully examined the Registration Statement,
the Prospectus and the Remarketing Materials and, in their opinion (A)
the Registration Statement, as of its Effective Date, and the
Prospectus and the Remarketing Materials, as of their respective
dates, did not include any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B) since
such dates, no event has occurred which should have been set forth in
a supplement or amendment to the Registration Statement, the
Prospectus or the Remarketing Materials.
(i) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Final Prospectus,
any material adverse change in the condition, financial or otherwise, or in
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business.
(j) Without the prior written consent of the Remarketing Agent, the
Certificate of Designations shall not have been amended in any manner, or
otherwise contain any provision contained therein as of the date hereof
that, in the opinion of the Remarketing Agent, materially changes the
nature of the Remarketed Preferred Stock or the Remarketing Procedures.
(k) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Preferred Stock
or any of the Company's or any Significant Subsidiary's (including, without
limitation, the Bank) debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act and (ii no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Preferred Stock or any
19
of the Company's or any Significant Subsidiary's (including, without
limitation, the Bank) debt securities.
(l) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Remarketing Agent, impracticable or inadvisable to proceed with the
Remarketing on the terms and in the manner contemplated in the Prospectus
or in the Remarketing Materials.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Remarketing Agent.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify and
hold harmless the Remarketing Agent, its officers and employees and each person,
if any, who controls the Remarketing Agent within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Remarketed
Preferred Stock), to which the Remarketing Agent or that officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Remarketing Materials or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the Remarketed
Preferred Stock under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter called a "Blue
Sky Application"), or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any amendment or supplement thereto, or in any Blue
Sky Application, any material fact required to be stated therein or necessary to
make the statements therein not misleading and shall reimburse the Remarketing
Agent and each such officer, employee and controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Remarketing
Agent or that officer, employee or controlling person in connection with
20
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Remarketing Materials or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon and in conformity
with the written information furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion therein and described in a letter
from the Remarketing Agent to the Company and provided further, that as to any
Preliminary Prospectus this indemnity agreement shall not inure to the benefit
of the Remarketing Agent, its officers or employees or any person controlling
the Remarketing Agent on account of any loss, claim, damage, liability or action
arising from the sale of the Remarketed Preferred Stock to any person by the
Remarketing Agent if the Remarketing Agent failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus was corrected in the Prospectus,
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 "Prospectus" shall not be deemed to include the documents incorporated
therein by reference, and the Remarketing Agent shall not be obligated to send
or give any supplement or amendment to any document incorporated by reference in
any Preliminary Prospectus or the Prospectus to any person other than a person
to whom the Remarketing Agent had delivered such incorporated document or
documents in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to the Remarketing Agent or to any officer, employee or controlling person of
the Remarketing Agent.
(b) The Remarketing Agent shall indemnify and hold harmless the Company,
its officers and employees, its directors and each person, if any, who controls
the Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company, any such director, officer or employee or any such
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Remarketing Materials or in any amendment or supplement
thereto or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Remarketing Materials or in any amendment or supplement
thereto, or in any Blue Sky Application, any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the written information furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion therein and described in a letter
from the Remarketing Agent to the Company and shall reimburse the Company and
any such director, officer or employee or such controlling person for any legal
or other expenses reasonably incurred by the Company or any such director or
officer or any such controlling person in
21
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which the Remarketing Agent may otherwise have to the Company or any such
director or officer or any such controlling person.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 6 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Remarketing Agent shall have the right to employ counsel to represent
jointly the Remarketing Agent and its officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Remarketing Agent against the Company under
this Section 6 if, in the reasonable judgment of the Remarketing Agent, it is
advisable for the Remarketing Agent and those officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or
22
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Remarketing Agent on the other hand from the Remarketing 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 on the one hand and the Remarketing Agent on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Remarketing Agent on the other with respect to
such offering shall be deemed to be in the same proportion as the total
liquidation preference of the Remarketed Securities less the fee paid
to the Remarketing Agent pursuant to Section 3(a) of this Agreement, on the one
hand, and the total fees received by the Remarketing Agent pursuant to such
Section 3(a), on the other hand, bear to the total liquidation preference of the
Remarketed Preferred Stock. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
the Company on the one hand or the Remarketing Agent on the other hand, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Remarketing Agent agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 6(d) shall be
deemed to include, for purposes of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Remarketing Agent shall not be required to
contribute any amount in excess of the amount by which the fees received by it
under Section 3 exceed the amount of any damages which the Remarketing Agent has
otherwise paid or become liable to pay by reason of any 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.
7. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT. The Remarketing Agent
may resign and be discharged from its duties and obligations hereunder, and the
Company may remove the Remarketing Agent, by giving 60 days' prior written
notice, in the case of a resignation, to the Company and the Depositary and, in
the case of a removal, the removed Remarketing Agent and the Depositary;
provided, however, that (i) the Company may not remove the Remarketing Agent
unless (A) the Remarketing Agent becomes involved as a debtor in a bankruptcy,
insolvency or similar proceeding, (B) the Remarketing Agent shall not be among
the 15 underwriters with the largest volume underwritten in dollars, on a lead
or co-managed basis, of U.S. domestic debt securities during the twelve-month
period ended as of the last calendar quarter preceding the Remarketing Date or
(C) the Remarketing Agent shall be subject to one or more legal restrictions
preventing the performance of its obligations hereunder and (ii) no such
resignation nor any such removal shall become effective until the Company shall
have appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent
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and such successor Remarketing Agent shall have entered into a with the Company in which it shall have agreed to conduct the
Remarketing in accordance with the Remarketing Procedures. In any such case,
the Company will use its reasonable efforts to appoint a successor Remarketing
Agent and enter into such a with such person as soon as
reasonably practicable. The provisions of Sections 3 and 6 shall survive the
resignation or removal of any Remarketing Agent pursuant to
this Agreement.
8. DEALING IN THE REMARKETED PREFERRED STOCK. The Remarketing Agent, when
acting as a Remarketing Agent or in its individual or any other capacity, may,
to the extent permitted by law, buy, sell, hold and deal in any shares of the
Remarketed Preferred Stock. The Remarketing Agent may exercise any vote or join
in any action which any beneficial owner of shares of Remarketed Preferred Stock
may be entitled to exercise or take pursuant to the Certificate of Designations
with like effect as if it did not act in any capacity hereunder. The Remarketing
Agent, in its individual capacity, either as principal or agent, may also engage
in or have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
9. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Agreement and the Certificate of Designations. No implied
covenants or obligations of or against the Remarketing Agent shall be read into
this Agreement or the Certificate of Designations. In the absence of bad faith
on the part of the Remarketing Agent, the Remarketing Agent may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement or the Certificate of Designations as to the
truth of the statements expressed in any of such documents. The Remarketing
Agent shall be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party or
parties. The Remarketing Agent, acting under this Agreement, shall incur no
liability to the Company or to any holder of Remarketed Preferred Stock in its
individual capacity or as Remarketing Agent for any action or failure to act, on
its part in connection with a Remarketing or otherwise, except if such liability
is judicially determined to have resulted from the gross negligence or willful
misconduct on its part.
10. TERMINATION. This Agreement shall terminate as to the Remarketing Agent
on the effective date of the resignation or removal of the Remarketing Agent
pursuant to Section 7. In addition, the obligations of the Remarketing Agent
hereunder may be terminated by it by notice given to the Company prior to 10:00
a.m., New York City time, on the Remarketing Date if, prior to that time, any of
the events described in Sections 5(i), (j), (k) or (l) shall have occurred.
11. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Facsimile: (000) 000-0000);
24
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: Xxxxxxxx X. Xxxxxxx, Esq. (Facsimile: 713-543-7744).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Remarketing Agent, the Company and its
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (x) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the officers and employees of the Remarketing
Agent and the person or persons, if any, who control the Remarketing Agent
within the meaning of Section 15 of the Securities Act and (y) the indemnity
agreement of the Remarketing Agent contained in Section 6(b) of this Agreement
shall be deemed to be for the benefit of directors, officers and employees of
the Company and any person controlling the Company within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
13. SURVIVAL. The respective indemnities, representations, warranties and
agreements of the Company and the Remarketing Agent contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the Remarketing and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 under the Securities Act.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the Company and
the Remarketing Agent, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
BANK UNITED CORP., a Delaware corporation,
By:/s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
Accepted:
XXXXXX BROTHERS INC.
By:/s/ Xxxx X. Xxxxxx
---------------------
AUTHORIZED REPRESENTATIVE
Managing Director
