EXHIBIT 10.35
RECOVERY AGREEMENT
This Recovery Agreement (the "Agreement") dated July 24, 1996 is entered
into by and among Bank United Corp., a Delaware corporation ("BUC"), Bank
United, a federally chartered savings bank and a wholly owned subsidiary of BUC
(the "Bank") and Hyperion Partners L.P., a Delaware limited partnership
("Hyperion").
WHEREAS, on December 30, 1988, BUC, the Bank, and Hyperion entered into
certain written agreements (the "Agreements"), negotiated by Hyperion, with the
Federal Savings and Loan Insurance Corporation (the "FSLIC") and the Federal
Home Loan Bank Board (the "FHLBB") pursuant to which the FSLIC and the FHLBB
undertook certain contractual obligations in connection with the acquisition by
the Bank, as a result of a winning bid by Hyperion, of certain of the assets and
the assumption of certain of the liabilities of United Savings Association of
Texas, a Texas state savings and loan association in receivership;
WHEREAS, on July 25, 1995, BUC, the Bank, and Hyperion sued the United
States of America in the United States Court of Federal Claims in Cause No.
95-473 C (the "Lawsuit") alleging that the United States had breached certain of
its contractual obligations under the Agreements and that said breaches had
damaged BUC, the Bank, and Hyperion;
WHEREAS, each of the parties to this Agreement has determined that it
would be in its best interest to acknowledge the relative value of the claims of
Hyperion and the claims of BUC and the Bank in the Lawsuit and to confirm the
entitlement of the parties to any recovery that may be obtained in the Lawsuit;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. RELATIVE VALUE OF CLAIMS. The parties hereto acknowledge that the relative
value of the claims asserted by Hyperion is fifteen percent of the total
amount actually received by the parties (the "Total Recovery") in the
Lawsuit, either by settlement or judgment, and that the relative value of
the claims of BUC and the Bank is eighty-five percent of the Total
Recovery.
2. CONFIRMATION OF ENTITLEMENT. The parties hereto confirm and agree that,
notwithstanding the provisions of any judgment or settlement agreement
entered or executed in connection with the Lawsuit, Hyperion is entitled
to receive fifteen percent of the Total Recovery. If, for any reason, more
than fifteen percent of the Total Recovery is received by Hyperion, then
Hyperion shall pay to BUC and the Bank, jointly, any amount in excess of
fifteen percent of the Total Recovery received by Hyperion. If, for any
reason, less than fifteen percent of the Total Recovery is received by
Hyperion, then BUC and the Bank, jointly, shall pay to Hyperion the
difference between the amount actually received by Hyperion and fifteen
percent of the Total Recovery. The parties hereto acknowledge that no
provision of this Agreement is in any way binding upon the United States
government or any agency thereof and will not affect any payment make by
the United States government or any agency thereof with respect to any
settlement of the Lawsuit or any judgment entered in the Lawsuit.
3. LEGAL FEES AND EXPENSES. The parties agree that, from the date of this
Agreement, the Bank shall pay directly all legal fees and expenses
incurred in connection with the prosecution or settlement of the lawsuit.
Hyperion agrees to reimburse the Bank for fifteen percent of all legal
fees and expenses incurred in connection with the Lawsuit after the date
of this Agreement.
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4. COOPERATION. The parties hereto agree that they shall cooperate in good
faith in connection with the management and control of the prosecution of
the Lawsuit so as to maximize the total recovery.
5. APPROVAL OF SETTLEMENT. The parties hereto agree that no party will enter
into any settlement agreement purporting to settle any or all of the
claims asserted in the Lawsuit without the express, written approval of
the other parties. Each of the parties further agrees that it will not
unreasonably withhold such approval.
6. COUNTERPARTS, ENTIRE AGREEMENT.
(a) This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall
become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
(b) This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof, supersedes all previous
agreements, negotiations, discussions, writings, understandings,
commitments, and conversations with respect to such subject matter,
and there are no agreements or understandings between the parties
other than those set forth or referred to herein or therein.
7. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, irrespective of the
choice of laws principles of the State of New York, as to all matters,
including matters of validity, construction, assignment, enforceability,
performance, and remedies.
8. SEVERABILITY. Any covenant, provision, agreement, or term of this
Agreement that is prohibited or held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective as to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
IN WITNESS WHEREOF, BUC, the Bank, and Hyperion have caused this Agreement to be
duly executed as of the date first above written.
BANK UNITED CORP. HYPERION PARTNERS L.P.
By: HYPERION VENTURES L.P.
the General Partner
By: SAR HYPERION CORP.
a General Partner
By: /s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President Title: President
BANK UNITED
By: /s/ XXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
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