Exhibit 4.6
BANK UNITED CORP.
and
THE BANK OF NEW YORK, as Collateral Agent
and
THE BANK OF NEW YORK, as Securities Intermediary
and
THE FIRST NATIONAL BANK OF CHICAGO, as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of August 10, 1999
TABLE OF CONTENTS
Page
Page
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Section 1. Definitions........................................................1
Section 2. Pledge.............................................................5
2.1 Pledge...............................................................5
2.2 Control; Financing Statement.........................................5
2.3 Termination..........................................................5
Section 3. Distributions on Pledged Collateral................................5
3.1 Income Distributions.................................................5
3.2 Principal Payments Following Termination Event.......................5
3.3 Principal Payments Prior To or On Purchase Contract
Settlement Date......................................................6
3.4 Payments to Purchase Contract Agent..................................6
3.5 Assets Not Properly Released.........................................6
Section 4. Control............................................................6
4.1 Establishment of Collateral Account..................................6
4.2 Treatment as Financial Assets........................................7
4.3 Sole Control by Collateral Agent.....................................7
4.4 Securities Intermediary's Location...................................7
4.5 No Other Claims......................................................7
4.6 Investment and Release...............................................7
4.7 Statements and Confirmations.........................................8
4.8 Tax Allocations......................................................8
4.9 No Other Agreements..................................................8
4.10 Powers Coupled With An Interest.....................................8
Section 5. Initial Deposit; Establishment of Treasury PIES and
Reestablishment of Corporate PIES..................................8
5.1 Initial Deposit of Shares of Preferred Stock.........................8
5.2 Establishment of Treasury PIES.......................................8
5.3 Reestablishment of Corporate PIES....................................9
5.4 Termination Event...................................................10
5.5 Cash Settlement.....................................................11
5.6 Early Settlement....................................................12
5.7 Application of Proceeds Settlement..................................12
Section 6. Voting Rights - Pledged Preferred Stock...........................13
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Section 7. Rights and Remedies...............................................14
7.1 Rights and Remedies of the Collateral Agent.........................14
7.2 Substitutions.......................................................15
Section 8. Representations and Warranties; Covenants.........................15
8.1 Representations and Warranties......................................15
8.2 Covenants...........................................................16
Section 9. The Collateral Agent and the Securities Intermediary..............16
9.1 Appointment, Powers and Immunities..................................16
9.2 Instructions of the Company.........................................17
9.3 Reliance by Collateral Agent and Securities Intermediary............17
9.4 Rights in Other Capacities..........................................17
9.5 Non-Reliance on Collateral Agent and Securities Intermediary........18
9.6 Compensation and Indemnity..........................................18
9.7 Failure to Act......................................................18
9.8 Resignation of Collateral Agent and Securities Intermediary.........19
9.9 Right to Appoint Agent or Advisor...................................20
9.10 Survival...........................................................20
9.11 Exculpation........................................................20
Section 10. Amendment........................................................20
10.1 Amendment Without Consent of Holders...............................20
10.2 Amendment with Consent of Holders..................................21
10.3 Execution of Amendments............................................22
10.4 Effect of Amendments...............................................22
10.5 Reference to Amendments............................................22
Section 11. Miscellaneous....................................................22
11.1 No Waiver..........................................................22
11.2 Governing Law......................................................22
11.3 Notices............................................................23
11.4 Successors and Assigns.............................................23
11.5 Counterparts.......................................................23
11.6 Severability.......................................................23
11.7 Expenses, etc......................................................23
11.8 Security Interest Absolute.........................................24
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Page
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury PIES)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury PIES)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of Corporate PIES)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of Corporate PIES)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary
to the Purchase Contract Agent.
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PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of August 10, 1999 among BANK UNITED CORP., a
Delaware corporation (the "Company"), THE BANK OF NEW YORK, not individually but
solely as collateral agent (in such capacity, together with its successors in
such capacity, the "Collateral Agent"), THE BANK OF NEW YORK, not individually
but solely in its capacity as a securities intermediary with respect to the
Collateral Account (in such capacity, together with its successors in such
capacity, the "Securities Intermediary"), and THE FIRST NATIONAL BANK OF
CHICAGO, not individually but solely as purchase contract agent and as
attorney-in-fact of the Holders from time to time of the Securities (in such
capacity, together with its successors in such capacity, the "Purchase Contract
Agent") under the Purchase Contract Agreement (as defined herein).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there may be issued up to 2,300,000 PIES (the "Securities").
Each Corporate PIES, at issuance, consists of a unit comprised of (a)
one stock purchase contract (each, a "Purchase Contract") under which (i) the
Holder will purchase from the Company on August 16, 2002, for an amount equal to
$50 (the "Stated Amount"), a number of shares of Common Stock equal to the
Settlement Rate and (ii) the Company will pay the Holder Contract Adjustment
Payments, if any, and (b) a share of Series B Preferred Stock of the Company
(each a "Share of Preferred Stock"), having a liquidation preference equal to
the Stated Amount.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders of the Securities have irrevocably authorized
the Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral Account to secure the
Obligations.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree as
follows:
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the Code shall have the
meanings set forth therein: "certificated security," "control," "financial
asset," "entitlement order," "securities account" and "security entitlement";
(d) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: (1) Act, (2) Agent, (3) Board Resolution, (4) Cash
Settlement, (5) Certificate, (6) Common Stock, (7) Contract Adjustment Payments,
(8) Corporate PIES, (9) Early Settlement, (10) Early Settlement Amount, (11)
Early Settlement Date, (12) Holder, (13) Opinion of Counsel, (14) Outstanding
Securities, (15) PIES, (16) Purchase Contract, (17) Purchase Contract Settlement
Date, (18) Purchase Price, (19) Remarketing Agent, (20) Remarketing Agreement,
(21) Settlement Rate, (22) Shares, (23) Termination Event, (24) Treasury PIES
and (25) Underwriting Agreement; and
(e) the following terms have the meanings given to them in this section
1(e):
"Agreement" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Business Day" means any day other than (i) a Saturday or Sunday or a
day on which banking institutions in Chicago, Illinois or The City of New York
are authorized or required by law or executive order to remain closed for
business.
"Cash" means any coin or currency of the United States as at the time
shall be legal tender for payment of public and private debts.
"Code" means the Uniform Commercial Code as in effect in the State of
New York from time to time.
"Collateral Account" means the collective reference to (1) Securities
Account No. 016335 entitled "The Bank of New York, as Collateral Agent,
Securities Account Bank United" maintained by the Securities Intermediary
for the Purchase Contract Agent on behalf of and as attorney-in-fact for the
Holders, (2) all investment property and other financial assets from time to
time credited to the Collateral Account, including, without limitation, (A)
Shares of Preferred Stock and security entitlements relating thereto which are a
component of the Corporate PIES from time to time, (B) any Treasury Securities
and security entitlements relating thereto delivered from time to time upon
establishment of Treasury PIES in accordance with Section 5.2 hereof and (C)
payments made by Holders pursuant to Section 5.5 hereof (collectively, the
"Collateral"), (3) all Proceeds of any of the foregoing (whether such Proceeds
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arise before or after the commencement of any proceeding under any applicable
bankruptcy, insolvency or other similar law, by or against the pledgor or with
respect to the pledgor) and (4) all powers and rights now owned or hereafter
acquired under or with respect to the Collateral Account.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Failed Remarketing" has the meaning specified in Section 5.4(b) of
the Purchase Contract Agreement.
"Obligations" means, with respect to each Holder, the collective
reference to all obligations and liabilities of such Holder under such Holder's
Purchase Contract and this Agreement or any other document made, delivered or
given in connection herewith or therewith, in each case whether on account of
principal, interest (including, without limitation, interest accruing before and
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to such Holder, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Company or the
Collateral Agent or the Securities Intermediary that are required to be paid by
the Holder pursuant to the terms of any of the foregoing agreements).
"Permitted Investments" means any one of the following which shall
mature not later than the next succeeding Business Day: (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or directly
and fully guaranteed or insured, by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support of the timely payment thereof or
such indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of 365 days or
less of any institution which is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $50 million
at the time of deposit; (iii) investments with an original maturity of 365 days
or less of any Person that are fully and unconditionally guaranteed by a bank
referred to in clause (ii); (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency thereof and
backed as to timely payment by the full faith and credit of the United States
Government; (v) investments in commercial paper, other than commercial paper
issued by the Company or its affiliates, of any corporation incorporated under
the laws of the United States or any State thereof, which commercial paper has a
rating at the time of purchase at least equal to "A-1" by Standard & Poor's
Ratings Services ("S&P") or at least equal to "P-1" by Xxxxx'x Investors
Service, Inc. ("Moody's"); and (vi) investments in money market funds registered
under the Investment Company Act of 1940, as amended, rated in the highest
applicable rating category by S&P or Moody's.
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"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Pledge" means the lien and security interest created by this
Agreement.
"Pledged Preferred Stock" means the Shares of Preferred Stock and
security entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.
"Pledged Treasury Securities" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"Proceeds" has the meaning ascribed thereto in the Code and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in Section 8-102(a)(9) of the Code) and other
property received, receivable or otherwise distributed upon the sale, exchange,
collection or disposition of any financial assets from time to time held in the
Collateral Account.
"Purchase Contract Agent" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"Transfer" means:
(a) in the case of certificated securities in registered form,
delivery as provided in Section 8-301(a) of the Code, indorsed to the transferee
or in blank by an effective indorsement;
(b) in the case of Treasury Securities, registration of the transferee
as the owner of such Treasury Securities on TRADES; and
(c) in the case of security entitlements, including, without
limitation, security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security entitlement
has been credited to the transferee's securities account.
"Treasury Security" means a zero-coupon U.S. Treasury Security (Cusip
Number 00000XX0) which are the principal strips of the 6-3/8% U.S. Treasury
Securities which mature on August 15, 2002.
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"Value" with respect to any item of Collateral on any date means, as to
(i) Cash, the face amount thereof, (ii) Treasury Securities, the aggregate
principal amount thereof at maturity and (iii) Shares of Preferred Stock, the
liquidation preference thereof.
Section 2. Pledge.
Section 2.1 Pledge. Each Holder, acting through the Purchase Contract
Agent as such Holder's attorney-in-fact, hereby pledges and grants to the
Collateral Agent, as agent of and for the benefit of the Company, a continuing
first priority security interest in and to, and a lien upon and right of set off
against, all of such Holder's right, title and interest in and to the Collateral
Account to secure the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of the Obligations.
The Collateral Agent shall have all of the rights, remedies and recourses with
respect to the Collateral afforded a secured party by the Code, in addition to,
and not in limitation of, the other rights, remedies and recourses afforded to
the Collateral Agent by this Agreement.
Section 2.2 Control; Financing Statement.
(a) The Collateral Agent shall have control of the Collateral Account
pursuant to the provisions of Section 4 of this Agreement.
(b) On the date of initial issuance of the Securities, the Purchase
Contract Agent shall deliver to the Collateral Agent a financing statement
prepared by the Company for filing in the Office of the Secretary of State of
the State of New York, signed by the Purchase Contract Agent, as
attorney-in-fact for the Holders, as debtors, and describing the Collateral.
Section 2.3 Termination. This Agreement and the Pledge created hereby
shall terminate, with respect to a Holder, upon the satisfaction of such
Holder's Obligations. Upon termination, the Securities Intermediary shall
Transfer the Collateral to the Purchase Contract Agent for distribution to the
Holders in accordance with their respective interests, free and clear of any
lien, pledge or security interest created hereby.
Section 3. Distributions on Pledged Collateral.
Section 3.1 Income Distributions. All income distributions, including
dividends, received by the Securities Intermediary on account of the Shares or
Permitted Investments from time to time held in the Collateral Account shall be
distributed to the Purchase Contract Agent for the benefit of the applicable
Holders as provided in the Purchase Contracts.
Section 3.2 Principal Payments Following Termination Event. All
payments received by the Securities Intermediary following a Termination Event
of (1) the principal amount of Pledged Preferred Stock or securities
entitlements thereto or (2) the principal amount of the Pledged Treasury
Securities or securities entitlements thereto shall be distributed to the
Purchase Contract Agent for the benefit of the Holders for distribution to such
Holders in accordance with their respective interests.
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Section 3.3 Principal Payments Prior To or On Purchase Contract
Settlement Date. (a) Subject to the provisions of Section 7.2, and except as
provided in clause 3.3(b) below, if no Termination Event shall have occurred,
all payments received by the Securities Intermediary of (1) the liquidation
preference with respect to the Pledged Preferred Stock or security entitlements
thereto or (2) the principal amount of Pledged Treasury Securities or security
entitlements thereto shall be held and invested in Permitted Investments until
the Purchase Contract Settlement Date and on the Purchase Contract Settlement
Date distributed to the Company as provided in Section 5.7 hereof. Any balance
remaining in the Collateral Account shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (1) the
liquidation preference of Shares of Preferred Stock or security entitlements
thereto or (2) the principal amount of Treasury Securities or security
entitlements thereto that in each case have been released from the Pledge shall
be distributed to the Purchase Contract Agent for the benefit of the Holders to
be distributed to such Holders in accordance with their respective interests.
Section 3.4 Payments to Purchase Contract Agent. Payments to the
Purchase Contract Agent hereunder shall be made for receipt to the account
designated by the Purchase Contract Agent for such purpose not later than 12:00
p.m., New York City time, on the Business Day such payment is received by the
Securities Intermediary; provided, however, that if such payment is received on
a day that is not a Business Day or after 11.30 a.m., New York City time, on a
Business Day, then such payment shall be made no later than 12:00 p.m., New York
City time, on the next succeeding Business Day. The Purchase Contract Agent will
not be obligated to make any distributions to the Holders hereunder until the
Purchase Contract Agent has received full payment of the applicable funds for
such distribution.
Section 3.5 Assets Not Properly Released. If the Purchase Contract
Agent or any Holder shall receive any payments of the liquidation amount or
principal payments on account of financial assets credited to the Collateral
Account and not released therefrom in accordance with this Agreement, the
Purchase Contract Agent or such Holder shall hold the same as trustee of an
express trust for the benefit of the Company and, upon receipt of an Officers'
Certificate (as defined in the Purchase Contract Agreement) of the Company so
directing, promptly deliver the same to the Securities Intermediary for credit
to the Collateral Account or to the Company for application to the obligations
of the Holders under the related Purchase Contracts, and the Purchase Contract
Agent and Holders shall acquire no right, title or interest in any such payments
of liquidation or principal amounts so received.
Section 4. Control.
Section 4.1 Establishment of Collateral Account. The Securities
Intermediary hereby confirms that (a) the Securities Intermediary has
established the Collateral Account, (b) the Collateral Account is a securities
account, (c) subject to the terms of this Agreement, the Securities Intermediary
shall treat the Purchase Contract Agent as entitled to exercise the rights that
comprise any financial asset credited to the Collateral Account, (d) all
property delivered to
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the Securities Intermediary pursuant to this Agreement or the Purchase Contract
Agreement will be credited promptly to the Collateral Account and (e) all
securities or other property underlying any financial assets credited to the
Collateral Account shall be registered in the name of the Securities
Intermediary, indorsed to the Securities Intermediary, or in blank or credited
to another securities account maintained in the name of the Securities
Intermediary, and in no case will any financial asset credited to the Collateral
Account be registered in the name of the Purchase Contract Agent or any Holder,
payable to the order of the Purchase Contract Agent or any Holder or specially
indorsed to the Purchase Contract Agent or any Holder.
Section 4.2 Treatment as Financial Assets. Each item of property
(whether investment property, financial asset, security, instrument or cash)
credited to the Collateral Account shall be treated as a financial asset.
Section 4.3 Sole Control by Collateral Agent. Except as provided in
Section 6, at all times prior to the termination of the Pledge, the Collateral
Agent shall have sole control of the Collateral Account, and the Securities
Intermediary shall take instructions and directions with respect to the
Collateral Account solely from the Collateral Agent. If at any time the
Securities Intermediary shall receive an entitlement order issued by the
Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or any Holder or any other Person. Until termination
of the Pledge, the Securities Intermediary will not comply with any entitlement
orders issued by the Purchase Contract Agent or any Holder.
Section 4.4 Securities Intermediary's Location. The Collateral Account
and the rights and obligations of the Securities Intermediary, the Collateral
Agent, the Purchase Contract Agent and the Holders with respect thereto shall be
governed by the laws of the State of New York. Regardless of any provision in
any other agreement, for purposes of the Code, New York shall be deemed to be
the Securities Intermediary's location, and the Collateral Account (as well as
the securities entitlements related thereto) shall be governed by the laws of
the State of New York.
Section 4.5 No Other Claims. Except for the claims and interest of the
Collateral Agent and of the Purchase Contract Agent and the Holders in the
Collateral Account, the Securities Intermediary does not know of any claim to,
or interest in, the Collateral Account or in any financial asset credited
thereto. If any person asserts any lien, encumbrance or adverse claim (including
any writ, garnishment, judgment, warrant of attachment, execution or similar
process) against the Collateral Account or in any financial asset carried
therein, the Securities Intermediary will promptly notify the Collateral Agent
and the Purchase Contract Agent.
Section 4.6 Investment and Release. All proceeds of financial assets
from time to time deposited in the Collateral Account shall be invested and
reinvested as provided in this Agreement. At all times prior to termination of
the Pledge, no property shall be released from the Collateral Account except in
accordance with this Agreement or upon written instructions of the Collateral
Agent.
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Section 4.7 Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Collateral Account and any financial assets
credited thereto simultaneously to each of the Purchase Contract Agent and the
Collateral Agent at their addresses for notices under this Agreement.
Section 4.8 Tax Allocations. All items of income, gain, expense and
loss recognized in the Collateral Account shall be reported by the Company to
the Internal Revenue Service and all state and local taxing authorities under
the names and taxpayer identification numbers of the Holders that are the
beneficial owners thereof.
Section 4.9 No Other Agreements. The Securities Intermediary has not
entered into and prior to the termination of the Pledge will not enter into any
agreement with any other Person relating to the Collateral Account or any
financial assets credited thereto, including, without limitation, any agreement
to comply with entitlement orders of any Person other than the Collateral Agent.
Section 4.10 Powers Coupled With An Interest. The rights and powers
granted in this Section 4 to the Collateral Agent have been granted in order to
perfect its security interests in the Collateral Account, are powers coupled
with an interest and will be affected neither by the bankruptcy of the Purchase
Contract Agent or any Holder nor by the lapse of time. The obligations of the
Securities Intermediary under this Section 4 shall continue in effect until the
termination of the Pledge.
Section 5. Initial Deposit; Establishment of Treasury PIES and
Reestablishment of Corporate PIES.
Section 5.1 Initial Deposit of Shares of Preferred Stock. Prior to or
concurrently with the execution and delivery of this Agreement, the Purchase
Contract Agent, on behalf of the initial Holders of the Corporate PIES, shall
Transfer to the Securities Intermediary, for credit to the Collateral Account,
the Shares of Preferred Stock or security entitlements relating to such Shares
of Preferred Stock, and the Securities Intermediary shall indicate by book entry
that a securities entitlement to such Shares of Preferred Stock has been
credited to the Collateral Account.
Section 5.2 Establishment of Treasury PIES. (a0 At any time on or prior
to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date, a Holder of Corporate PIES shall have the right to establish or
reestablish Treasury PIES by substitution of Treasury Securities or security
entitlements thereto for the Pledged Preferred Stock comprising a part of such
Holder's Corporate PIES in integral multiples of 20 Corporate PIES by:
(1) Transferring to the Securities Intermediary for credit to
the Collateral Account Treasury Securities or security entitlements
thereto having a Value equal to the liquidation preference of the
Pledged Preferred Stock to be released, accompanied by a notice,
substantially in the form of Exhibit C to the Purchase Contract
Agreement, whereupon the Purchase Contract Agent shall deliver to the
Collateral Agent a notice, substantially in the form of Exhibit A
hereto, (A) stating that such Holder has Transferred
9
Treasury Securities or security entitlements thereto to the Securities
Intermediary for credit to the Collateral Account, (B) stating the
Value of the Treasury Securities or security entitlements thereto
Transferred by such Holder and (C) requesting that the Collateral
Agent release from the Pledge the Pledged Preferred Stock that are a
component of such Corporate PIES; and
(2) delivering the related Corporate PIES to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Treasury Securities or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice, substantially in the form of Exhibit B hereto, to
release such Pledged Preferred Stock from the Pledge by Transfer to the Purchase
Contract Agent for distribution to such Holder, free and clear of any lien,
pledge or security interest created hereby.
(b) Upon credit to the Collateral Account of Treasury Securities or
security entitlements thereto delivered by a Holder of Corporate PIES and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release the Pledged Preferred Stock and shall promptly
transfer the same to the Purchase Contract Agent for distribution to such
Holder, free and clear of any lien, pledge or security interest created hereby.
Section 5.3 Reestablishment of Corporate PIES. (a) At any time on or
prior to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date, a Holder of Treasury PIES shall have the right to reestablish
Corporate PIES by substitution of Shares of Preferred Stock or security
entitlements thereto for Pledged Treasury Securities in integral multiples of 20
Treasury PIES by:
(1) Transferring to the Securities Intermediary for credit to
the Collateral Account Shares of Preferred Stock or security
entitlements thereto having a liquidation preference equal to the Value
of the Pledged Treasury Securities to be released, accompanied by a
notice, substantially in the form of Exhibit C to the Purchase Contract
Agreement, whereupon the Purchase Contract Agent shall deliver to the
Collateral Agent a notice, substantially in the form of Exhibit C
hereto, stating that such Holder has Transferred Shares of Preferred
Stock or security entitlements thereto to the Securities Intermediary
for credit to the Collateral Account and requesting that the Collateral
Agent release from the Pledge the Pledged Treasury Securities related
to such Treasury PIES; and
(2) delivering the related Treasury PIES to the Purchase
Contract Agent.
Upon receipt of such notice and confirmation that Shares of Preferred Stock or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice in the form provided in Exhibit D to release such
Pledged Treasury Securities from the Pledge by Transfer to the Purchase Contract
Agent for distribution to such Holder.
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(b) Upon credit to the Collateral Account of Shares of Preferred Stock
or security entitlements thereto and receipt of the related instruction from the
Collateral Agent, the Securities Intermediary shall release the applicable
Pledged Treasury Securities and shall promptly Transfer the same to the Purchase
Contract Agent for distribution to such Holder, free and clear of any lien,
pledge or security interest created hereby.
Section 5.4 Termination Event. (a) Upon receipt by the Collateral Agent
of written notice from the Company or the Purchase Contract Agent that a
Termination Event has occurred, the Collateral Agent shall release all
Collateral from the Pledge and shall promptly Transfer:
(1) any Pledged Preferred Stock; and
(2) any Pledged Treasury Securities
to the Purchase Contract Agent for the benefit of the Holders, for distribution
to such Holders in accordance with their respective interests, free and clear of
any lien, pledge or security interest or other interest created hereby.
(b) If such Termination Event shall result from the Company's becoming
a debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Preferred Stock or the Pledged Treasury Securities, as the case may be, as
provided by this Section 5.4, the Purchase Contract Agent shall:
(1) use its best efforts to obtain an opinion of a nationally
recognized law firm reasonably acceptable to the Collateral Agent to
the effect that, as a result of the Company's being the debtor in such
a bankruptcy case, the Collateral Agent will not be prohibited from
releasing or Transferring the Collateral as provided in this Section
5.4, and shall deliver such opinion to the Collateral Agent within ten
days after the occurrence of such Termination Event, and if (A) the
Purchase Contract Agent shall be unable to obtain such opinion within
ten days after the occurrence of such Termination Event or (B) the
Collateral Agent shall continue, after delivery of such opinion, to
refuse to effectuate the release and Transfer of all Pledged Preferred
Stock, all the Pledged Treasury Securities or the Proceeds of any of
the foregoing, as the case may be, as provided in this Section 5.4,
then the Purchase Contract Agent shall within fifteen days after the
occurrence of such Termination Event commence an action or proceeding
in the court having jurisdiction of the Company's case under the
Bankruptcy Code seeking an order requiring the Collateral Agent to
effectuate the release and transfer of all Pledged Preferred Stock or
all the Pledged Treasury Securities, as the case may be, as provided by
this Section 5.4; or
(2) commence an action or proceeding like that described in
clause 5.4(b)(1)(B) hereof within ten days after the occurrence of such
Termination Event.
Section 5.5 Cash Settlement. (a) Upon receipt by the Collateral Agent
of (1) a notice from the Purchase Contract Agent promptly after the receipt by
the Purchase Contract Agent of a
11
notice that a Holder of a Corporate PIES or Treasury PIES has elected, in
accordance with the procedures specified in Section 5.4(a)(i) or (d)(i)
of the Purchase Contract Agreement, respectively, to settle its
Purchase Contract with cash and (2) payment by such Holder by deposit
in the Collateral Account on or prior to 11:00 a.m., New York City time, on the
fifth Business Day immediately preceding the Purchase Contract Settlement Date,
in the case of Corporate PIES, and the Business Day immediately preceding the
Purchase Contract Settlement Date, in the case of the Treasury PIES, of the
Purchase Price in lawful money of the United States by certified or cashier's
check or wire transfer of immediately available funds payable to or upon the
order of the Securities Intermediary, then the Collateral Agent shall (i)
instruct the Securities Intermediary promptly to invest any such Cash in
Permitted Investments and (ii) release from the Pledge (1) Pledged Preferred
Stock in the case of a Holder of Corporate PIES, or (2) Pledged Treasury
Securities in the case of a Holder of Treasury PIES with a liquidation or
principal amount equal to the product of (x) the Stated Amount times (y) the
number of such Purchase Contracts as to which such Holders have elected to
effect a cash settlement pursuant to this Section 5.5(a) and shall instruct the
Securities Intermediary to Transfer all such Pledged Preferred Stock or Pledged
Treasury Securities, as the case may be, to the Purchase Contract Agent for the
benefit of such Holders, in each case free and clear of the Pledge created
hereby, for distribution to such Holders in accordance with their respective
interests. Upon receipt of the proceeds upon the maturity of the Permitted
Investments on the Purchase Contract Settlement Date, the Collateral Agent shall
(A instruct the Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an aggregate amount equal
to the Purchase Price, to the Company on the Purchase Contract Settlement Date,
and (B) instruct the Securities Intermediary to release any amounts in respect
of the interest earned from such Permitted Investments to the Purchase Contract
Agent for distribution to the relevant Holders in accordance with their
respective interests.
(b) If a Holder of a Corporate PIES notifies the Purchase Contract
Agent as provided in paragraph 5.4(a)(i) of the Purchase Contract Agreement of
its intention to pay the Purchase Price in cash, but fails to make such payment
as required by paragraph 5.4(a)(ii) of the Purchase Contract Agreement, such
Holder shall be deemed to have consented to the disposition of the Pledged
Preferred Stock of such Holder in accordance with paragraph 5.4(a)(iii) of the
Purchase Contract Agreement.
(c) If a Holder of a Treasury PIES notifies the Purchase Contract Agent
as provided in paragraph 5.4(d)(i) of the Purchase Contract Agreement of its
intention to pay the Purchase Price in cash, but fails to make such payment as
required by paragraph 5.4(d)(ii) of the Purchase Contract Agreement, such Holder
shall be deemed to have elected to pay the Purchase Price in accordance with
paragraph 5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m., New York City time, on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date, the Securities
Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of cash
that it has received with respect to the Cash Settlement of Corporate PIES and
(ii) the amount of cash that it has received with respect to the Cash Settlement
of Treasury PIES.
12
Section 5.6 Early Settlement. Upon written notice to the Collateral
Agent by the Purchase Contract Agent that one or more Holders of Securities have
elected to effect Early Settlement of their respective obligations under the
Purchase Contracts forming a part of such Securities in accordance with the
terms of the Purchase Contracts and the Purchase Contract Agreement (setting
forth the number of such Purchase Contracts as to which such Holders have
elected to effect Early Settlement), and that the Purchase Contract Agent has
received from such Holders, and paid to the Company as confirmed in writing by
the Company, the related Early Settlement Amounts pursuant to the terms of the
Purchase Contracts and the Purchase Contract Agreement and that all conditions
to such Early Settlement have been satisfied, then the Collateral Agent shall
release from the Pledge, upon three Business Days' written notice to the
Collateral Agent , (a) Pledged Preferred Stock, in the case of a Holder of
Corporate PIES, or (b0 Pledged Treasury Securities, in the case of a Holder of
Treasury PIES, with a Value equal to the product of (i) the Stated Amount times
(ii) the number of Purchase Contracts as to which such Holders have elected to
effect Early Settlement and shall instruct the Securities Intermediary to
Transfer all such Pledged Preferred Stock or Pledged Treasury Securities, as the
case may be, to the Purchase Contract Agent for the benefit of such Holders, in
each case free and clear of the Pledge created hereby, for distribution to such
Holders in accordance with their respective interests.
Section 5.7 Application of Proceeds Settlement. (a) If a Holder of
Corporate PIES has not elected to make an effective Cash Settlement by notifying
the Purchase Contract Agent in the manner provided for in Section 5.4(a)(i) in
the Purchase Contract Agreement, or has given such notice but failed to deliver
the required cash prior to 11:00 a.m., New York City time, on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, such Holder
shall be deemed to have elected to pay for the shares of Common Stock to be
issued under such Purchase Contract(s) from the Proceeds of the related Pledged
Preferred Stock. In such event, the Collateral Agent shall instruct the
Securities Intermediary to Transfer the related Pledged Preferred Stock to the
Remarketing Agent for remarketing. Upon receiving such Pledged Preferred Stock,
the Remarketing Agent, pursuant to the terms of the Remarketing Agreement, will
use its reasonable efforts to remarket such Pledged Preferred Stock on such date
at a price of 100.50% of the aggregate liquidation preference of such Pledged
Preferred Stock. The Remarketing Agent will deposit in the Collateral Account
the portion of the Proceeds of such remarketing equal to 100% the aggregate
liquidation preference of the remarketed Pledged Preferred Stock and, pursuant
to the Remarketing Agreement, shall retain the portion of the Proceeds equal to
0.50% of the aggregate liquidation preference of the remarketed Pledged
Preferred Stock. On the Purchase Contract Settlement Date, upon three Business
Days' written notice to the Collateral Agent the Collateral Agent shall instruct
the Securities Intermediary to apply a portion of the Proceeds from such
remarketing equal to the aggregate liquidation preference of such Pledged
Preferred Stock to satisfy in full the obligations of such Holders of Corporate
PIES to pay the Purchase Price to purchase the Common Stock under the related
Purchase Contracts. The balance of the Proceeds from such remarketing on deposit
in the Collateral Account shall be transferred to the Purchase Contract Agent
for distribution to the Holders in accordance with their respective interests.
If the Remarketing Agent advises the Collateral Agent in writing that there has
been a Failed Remarketing, thus resulting in an event of default under the
Purchase Contract Agreement and hereunder, the Collateral Agent, for the
13
benefit of the Company shall, at the written direction of the Company, dispose
of the Pledged Preferred Stock in accordance with applicable law and satisfy
in full, from such disposition, such Holders' obligations to pay the Purchase
Price for the Common Stock.
(b) If a Holder of Treasury PIES has not elected to make an effective
cash settlement by notifying the Purchase Contract Agent in the manner provided
for in Section 5.4(d)(i) of the Purchase Contract Agreement, or has given such
notice but failed to make such payment in the manner required by Section
5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be deemed to
have elected to pay for the shares of Common Stock to be issued under such
Purchase Contract(s) from the Proceeds of the related Pledged Treasury
Securities. Upon maturity of the Pledged Treasury Securities, the Securities
Intermediary, at the written direction of the Collateral Agent, shall invest the
Cash Proceeds of the maturing Pledged Treasury Securities in Permitted
Investments. Without receiving any instruction from any such Holder of Treasury
PIES, the Collateral Agent shall apply the Proceeds of the related Pledged
Treasury Securities to the settlement of such Purchase Contracts on the Purchase
Contract Settlement Date. In the event the sum of the Proceeds from the related
Pledged Treasury Securities and the investment earnings from the investment in
Permitted Investments is in excess of the aggregate Purchase Price of the
Purchase Contracts being settled thereby, the Collateral Agent shall instruct
the Securities Intermediary to distribute such excess, when received, to the
Purchase Contract Agent for the benefit of such Holders for distribution to such
Holders in accordance with their respective interests.
Section 6. Voting Rights-Pledged Preferred Stock. The Purchase
Contract Agent will only exercise any voting rights upon written direction and
indemnity of holders, or may refrain from exercising, any and all voting and
other consensual rights pertaining to the Pledged Preferred Stock or any part
thereof for any purpose not inconsistent with the terms of this Agreement and in
accordance with the terms of the Purchase Contract Agreement; provided, that the
Purchase Contract Agent shall not exercise or, as the case may be, shall not
refrain from exercising such right if, in the judgment of the Purchase Contract
Agent, such action would impair or otherwise have a material adverse effect on
the value of all or any of the Pledged Preferred Stock; and provided, further,
that the Purchase Contract Agent shall give the Company and the Collateral Agent
at least five days' prior written notice of the manner in which it intends to
exercise any such right. Upon receipt of any notices and other communications in
respect of any Pledged Preferred Stock, including notice of any meeting at which
holders of the Shares of Preferred Stock are entitled to vote or solicitation of
consents, waivers or proxies of holders of the Shares of Preferred Stock, the
Collateral Agent shall use reasonable efforts to send promptly to the Purchase
Contract Agent such notice or communication, and as soon as reasonably
practicable after receipt of a written request therefor from the Purchase
Contract Agent, execute and deliver to the Purchase Contract Agent such proxies
and other instruments in respect of such Pledged Preferred Stock (in form and
substance satisfactory to the Collateral Agent) as are prepared by the Purchase
Contract Agent with respect to the Pledged Preferred Stock.
Section 7. Rights and Remedies.
14
Section 7.1 Rights and Remedies of the Collateral Agent. (a) In
addition to the rights and remedies specified in Section 5.5 hereof or otherwise
available at law or in equity, after an event of default (as specified in
Section 7.1(b) below) hereunder the Collateral Agent shall have all of the
rights and remedies with respect to the Collateral of a secured party under the
Code (whether or not the Code is in effect in the jurisdiction where the rights
and remedies are asserted) and the TRADES Regulations and such additional rights
and remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted.
Without limiting the generality of the foregoing, such remedies may include, to
the extent permitted by applicable law, (i) retention of the Pledged Preferred
Stock in full satisfaction of the Holders' obligations under the Purchase
Contracts or (ii) sale of the Pledged Preferred Stock in one or more public or
private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Securities as provided in Section 3 hereof, in satisfaction of the
Obligations of the Holder of the Securities of which such Pledged Treasury
Securities is a part under the related Purchase Contracts, the inability to make
such payments shall constitute an event of default hereunder and the Collateral
Agent shall have and may exercise, with reference to such Pledged Treasury
Securities and such Obligations of such Holder, any and all of the rights and
remedies available to a secured party under the Code and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any other
law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) dividends on the Pledged
Preferred Stock and (ii) the principal amount of the Pledged Treasury
Securities, subject, in each case, to the provisions of Section 3 hereof, and as
otherwise granted herein.
(d) The Purchase Contract Agent and each Holder of Securities, in the
event such Holder becomes the Holder of a Treasury PIES, agrees that, from time
to time, upon the written request of the Collateral Agent, the Purchase Contract
Agent or such Holder shall execute and deliver such further documents and do
such other acts and things as the Collateral Agent, upon notice by the Company,
may reasonably request in order to maintain the Pledge, and the perfection and
priority thereof, and to confirm the rights of the Collateral Agent hereunder.
The Purchase Contract Agent shall have no liability to any Holder for executing
any documents or taking any such acts requested by the Collateral Agent
hereunder, except for liability for its own negligent acts, its own negligent
failure to act or its own willful misconduct.
Section 7.2 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Shares of Preferred Stock or security
entitlements to either of them for financial assets held in the Collateral
Account, such substitution shall not constitute a novation of the security
interest created hereby.
Section 8. Representations and Warranties; Covenants.
15
Section 8.1 Representations and Warranties. Each Holder from time to
time, acting through the Purchase Contract Agent as attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represents
and warrants to the Collateral Agent (with respect to his interest in the
Collateral), which representations and warranties shall be deemed repeated on
each day a Holder Transfers Collateral that:
(a) such Holder has the power to grant a security
interest in and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the
Collateral and, in the case of Collateral delivered
in physical form, is the sole holder of such
Collateral and is the sole beneficial owner of, or
has the right to Transfer, the Collateral it
Transfers to the Securities Intermediary for credit
to the Collateral Account, free and clear of any
security interest, lien, encumbrance, call, liability
to pay money or other restriction other than the
security interest and lien granted under Section 2
hereof;
(c) upon the Transfer of the Collateral to the Securities
Intermediary for credit to the Collateral Account,
the Collateral Agent, for the benefit of the Company,
will have a valid and perfected first priority
security interest therein (assuming that any central
clearing operation or any securities intermediary or
other entity not within the control of the Holder
involved in the Transfer of the Collateral, including
the Collateral Agent and the Securities Intermediary,
gives the notices and takes the action required of it
hereunder and under applicable law for perfection of
that interest and assuming the establishment and
exercise of control pursuant to Section 4 hereof);
and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in
the creation of any security interest, lien or other
encumbrance on the Collateral other than the security
interest and lien granted under Section 2 hereof or
violate any provision of any existing law or
regulation applicable to it or of any mortgage,
charge, pledge, indenture, contract or undertaking to
which it is a party or which is binding on it or any
of its assets.
Section 8.2 Covenants. The Purchase Contract Agent and the Holders from
time to time, acting through the Purchase Contract Agent as their
attorney-in-fact (it being understood that the Purchase Contract Agent shall not
be liable for any covenant made by or on behalf of a Holder), hereby covenant to
the Collateral Agent that for so long as the Collateral remains subject to the
Pledge:
(a) neither the Purchase Contract Agent nor such Holders
will create or purport to create or allow to subsist
any mortgage, charge, lien, pledge or
16
any other security interest whatsoever over the
Collateral or any part of it other than pursuant
to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders
will sell or otherwise dispose (or attempt to
dispose) of the Collateral or any part of it except
for the beneficial interest therein, subject to the
Pledge hereunder, transferred in connection with the
Transfer of the Securities.
Section 9. The Collateral Agent and the Securities Intermediary. It is
hereby agreed as follows:
Section 9.1 Appointment, Powers and Immunities. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof; (b) shall not be responsible for any
recitals contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by it under, this Agreement, the
Securities or the Purchase Contract Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
(other than as against the Collateral Agent), the Securities or the Purchase
Contract Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company or any other Person (except the
Collateral Agent) to perform any of its obligations hereunder or thereunder or
for the perfection, priority or, except as expressly required hereby,
maintenance of any security interest created hereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 9.2 hereof,
subject to Section 9.6 hereof); (d) shall not be responsible for any action
taken or omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection herewith or
therewith, except for its own negligence or willful misconduct; and (e) shall
not be required to advise any party as to selling or retaining, or taking or
refraining from taking any action with respect to, any securities or other
property deposited hereunder. Subject to the foregoing, during the term of this
Agreement, the Collateral Agent shall take all reasonable action in connection
with the safekeeping and preservation of the Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the Value of the Collateral.
Notwithstanding the foregoing, each of the Collateral Agent and the Securities
Intermediary in its individual capacity hereby waives any right of setoff,
bankers lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
17
Section 9.2 Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for the realization of any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the Collateral Agent,
or to direct the taking or refraining from taking of any action authorized by
this Agreement; provided, however, that (i) such direction shall not conflict
with the provisions of any law or of this Agreement and (ii) the Collateral
Agent shall be adequately indemnified as provided herein. Nothing in this
Section 9.2 shall impair the right of the Collateral Agent in its discretion to
take any action or omit to take any action which it deems proper and which is
not inconsistent with such direction.
Section 9.3 Reliance by Collateral Agent and Securities Intermediary.
Each of the Securities Intermediary and the Collateral Agent shall be entitled
to rely upon any certification, order, judgment, opinion, notice or other
communication (including, without limitation, any thereof by telephone or
facsimile) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons (without being required to
determine the correctness of any fact stated therein) and upon advice and
statements of legal counsel and other experts selected by the Collateral Agent
and the Securities Intermediary. As to any matters not expressly provided for by
this Agreement, the Collateral Agent and the Securities Intermediary shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
in accordance with instructions given by the Company in accordance with this
Agreement.
Section 9.4 Rights in Other Capacities. The Collateral Agent and the
Securities Intermediary and their affiliates may (without having to account
therefor to the Company) accept deposits from, lend money to, make their
investments in and generally engage in any kind of banking, trust or other
business with the Purchase Contract Agent, any other Person interested herein
and any Holder of Securities (and any of their respective subsidiaries or
affiliates) as if it were not acting as the Collateral Agent, and the Collateral
Agent, the Securities Intermediary and their affiliates may accept fees and
other consideration from the Purchase Contract Agent and any Holder of
Securities without having to account for the same to the Company; provided that
each of the Securities Intermediary and the Collateral Agent covenants and
agrees with the Company that it shall not accept, receive or permit there to be
created in favor of itself and shall take no affirmative action to permit there
to be created in favor of any other Person, any security interest, lien or other
encumbrance of any kind in or upon the Collateral other than the lien created by
the Pledge.
Section 9.5 Non-Reliance on Collateral Agent and Securities
Intermediary. Neither the Securities Intermediary nor the Collateral Agent shall
be required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. Neither the Collateral
Agent nor the Securities Intermediary shall have any duty or responsibility to
provide the Company with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
18
possession of the Collateral Agent or the Securities Intermediary or any of
their respective affiliates.
Section 9.6 Compensation and Indemnity. The Company agrees: (i) to pay
the Collateral Agent and the Securities Intermediary from time to time such
compensation as shall be agreed in writing between the Company and the
Collateral Agent or the Securities Intermediary, as the case may be, for all
services rendered by them hereunder and (ii) to indemnify the Collateral Agent,
the Securities Intermediary and the Purchase Contract Agent for, and to hold
each of them harmless from and against, any loss, liability or reasonable
out-of-pocket expense incurred without negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the acceptance or
administration of its powers and duties under this Agreement, including the
reasonable out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel) of defending itself against any claim or liability in
connection with the exercise or performance of such powers and duties. The
provisions of this Section shall survive the termination of this Agreement.
Section 9.7 Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the parties hereto or any other Person with respect to any funds or
property deposited hereunder, the Collateral Agent and the Securities
Intermediary shall be entitled, after prompt notice to the Company and the
Purchase Contract Agent, at its sole option, to refuse to comply with any and
all claims, demands or instructions with respect to such property or funds so
long as such dispute or conflict shall continue, and the Collateral Agent and
the Securities Intermediary shall not be or become liable in any way to any of
the parties hereto for its failure or refusal to comply with such conflicting
claims, demands or instructions. The Collateral Agent and the Securities
Intermediary shall be entitled to refuse to act until either (i) such
conflicting or adverse claims or demands shall have been finally determined by a
court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to the Collateral Agent or the
Securities Intermediary or (ii) the Collateral Agent or the Securities
Intermediary shall have received security or an indemnity satisfactory to it
sufficient to save it harmless from and against any and all loss, liability or
reasonable out-of-pocket expense which it may incur by reason of its acting. The
Collateral Agent and the Securities Intermediary may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent or the Securities Intermediary may deem necessary.
Notwithstanding anything contained herein to the contrary, neither the
Collateral Agent nor the Securities Intermediary shall be required to take any
action that is in its opinion contrary to law or to the terms of this Agreement,
or which would in its opinion subject it or any of its officers, employees or
directors to liability.
Section 9.8 Resignation of Collateral Agent and Securities
Intermediary. (a) Subject to the appointment and acceptance of a successor
Collateral Agent as provided below, (i) the Collateral Agent may resign at any
time by giving notice thereof to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders of Securities, (ii) the Collateral Agent may be
removed at any time by the Company and (iii) if the Collateral Agent fails to
perform any of its material obligations hereunder in any material respect for a
period of not less than 20 days after receiving written notice of such failure
by the Purchase Contract Agent and
19
such failure shall be continuing, the Collateral Agent may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Collateral Agent pursuant to clause (iii) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the retiring Collateral Agent's giving of
notice of resignation or such removal, then the retiring Collateral Agent may
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent. The Collateral Agent shall be a bank which has an office in
New York, New York with a combined capital and surplus of at least $50,000,000
and shall not be the Purchase Contract Agent or any of its affiliates. Upon the
acceptance of any appointment as Collateral Agent hereunder by a successor
Collateral Agent, such successor Collateral Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent shall take all appropriate
action to transfer any money and property held by it hereunder (including the
Collateral) to such successor Collateral Agent. The retiring Collateral Agent
shall, upon such succession, be discharged from its duties and obligations as
Collateral Agent hereunder. After any retiring Collateral Agent's resignation
hereunder as Collateral Agent, the provisions of this Section 9 shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as the Collateral Agent.
(b) Subject to the appointment and acceptance of a successor Securities
Intermediary as provided below, (i) the Securities Intermediary may resign at
any time by giving notice thereof to the Company and the Purchase Contract Agent
as attorney-in-fact for the Holders of Securities, (ii) the Securities
Intermediary may be removed at any time by the Company and (iii) if the
Securities Intermediary fails to perform any of its material obligations
hereunder in any material respect for a period of not less than 20 days after
receiving written notice of such failure by the Purchase Contract Agent and such
failure shall be continuing, the Securities Intermediary may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Securities Intermediary pursuant to clause (iii)
of the immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Securities Intermediary. If
no successor Securities Intermediary shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Securities
Intermediary's giving of notice of resignation or such removal, then the
retiring Securities Intermediary may petition any court of competent
jurisdiction for the appointment of a successor Securities Intermediary. The
Securities Intermediary shall be a bank which has an office in New York, New
York with a combined capital and surplus of at least $50,000,000 and shall not
be the Purchase Contract Agent or any of its affiliates. Upon the acceptance of
any appointment as Securities Intermediary hereunder by a successor Securities
Intermediary, such successor Securities Intermediary shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Securities Intermediary, and the retiring Securities Intermediary shall
take all appropriate action to transfer any money and property held by it
hereunder (including the Collateral) to such successor Securities Intermediary.
The retiring Securities Intermediary shall, upon such succession, be discharged
from its duties and obligations as Securities Intermediary hereunder. After any
retiring Securities Intermediary's resignation hereunder as Securities
Intermediary, the provisions of this Section 9 shall continue in effect for
20
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Securities Intermediary.
Section 9.9 Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by, or in reliance upon the advice of, such agents or advisors
selected in good faith. The appointment of agents pursuant to this Section 9.9
shall be subject to prior consent of the Company, which consent shall not be
unreasonably withheld.
Section 9.10 Survival. The provisions of this Section 9 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent or the Securities Intermediary.
Section 9.11 Exculpation. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent or the Securities
Intermediary or their officers, directors, employees or agents be liable under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Collateral
Agent or the Securities Intermediary, or any of them, incurred without any act
or deed that is found to be attributable to gross negligence or willful
misconduct on the part of the Collateral Agent or the Securities Intermediary.
Section 10. Amendment.
Section 10.1 Amendment Without Consent of Holders. Without the consent
of any Holders, the Company, the Collateral Agent, the Securities Intermediary
and the Purchase Contract Agent, at any time and from time to time, may amend
this Agreement, in form satisfactory to the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company;
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company, so long as such covenants or such surrender do not
adversely affect the validity, perfection or priority of the Pledge
created hereunder;
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent, Securities Intermediary or
Purchase Contract Agent; or
(4) to cure any ambiguity (or formal defect), to correct or
supplement any provisions herein which may be inconsistent with any
other such provisions herein, or to make any other provisions with
respect to such matters or questions arising under this Agreement,
provided such action shall not adversely affect the interests of the
Holders.
21
Section 10.2 Amendment with Consent of Holders. With the consent of the
Holders of not less than a majority of the Purchase Contracts at the time
outstanding, by Act of said Holders delivered to the Company, the Purchase
Contract Agent, the Securities Intermediary or the Collateral Agent, as the case
may be, the Company, when duly authorized, the Purchase Contract Agent, the
Securities Intermediary and the Collateral Agent may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Securities; provided, however, that no
such supplemental agreement shall, without the unanimous consent of the Holders
of each Outstanding Security adversely affected thereby,
(1) change the amount or type of Collateral underlying a
Security (except for the rights of holders of Corporate PIES to
substitute the Treasury Securities for the Pledged Preferred Stock or
the rights of Holders of Treasury PIES to substitute Shares of
Preferred Stock for the Pledged Treasury Securities), impair the right
of the Holder of any Security to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's rights
in or to such Collateral; or
(2) otherwise effect any action that would require the consent
of the Holder of each Outstanding Security affected thereby pursuant to
the Purchase Contract Agreement if such action were effected by an
agreement supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent
of whose Holders is required for any such amendment;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate PIES or only the Treasury PIES, then only the affected
class of Holder as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; provided that the unanimous consent of the
Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses (1)
- (3) above.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed amendment, but it shall be sufficient if
such Act shall approve the substance thereof.
Section 10.3 Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent, the Securities Intermediary and
the Purchase Contract Agent shall be entitled to receive and (subject to Section
7.1 of the Purchase Contract Agreement with respect to the Purchase Contract
Agent) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent, if any, to the execution and
delivery of such amendment have been satisfied.
22
Section 10.4 Effect of Amendments. Upon the execution of any amendment
under this Section, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered under the Purchase Contract Agreement
shall be bound thereby.
Section 10.5 Reference to Amendments. Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new Security Certificates
so modified as to conform, in the opinion of the Collateral Agent, the Purchase
Contract Agent and the Company, to any such amendment may be prepared and
executed by the Company and authenticated, executed on behalf of the Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
Section 11. Miscellaneous.
Section 11.1 No Waiver. No failure on the part of the Collateral Agent
or any of its agents to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Section 11.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Without limiting
the foregoing, the above choice of law is expressly agreed to by the Company,
the Securities Intermediary, the Collateral Agent and the Holders from time to
time acting through the Purchase Contract Agent, as their attorney-in-fact, in
connection with the establishment and maintenance of the Collateral Account. The
Company, the Collateral Agent, the Securities Intermediary and the Holders from
time to time of the Securities, acting through the Purchase Contract Agent as
their attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company, the Collateral Agent, the Securities
Intermediary and the Holders from time to time of the Securities, acting through
the Purchase Contract Agent as their attorney-in-fact, irrevocably waive, to the
fullest extent permitted by applicable law, any objection which they may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
Section 11.3 Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents
23
under, this Agreement) shall be given or made in writing (including, without
limitation, by telecopy) delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof or, as to any
party, at such other address as shall be designated by such party in a notice to
the other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
Section 11.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent, the Securities Intermediary and the Purchase
Contract Agent, and the Holders from time to time of the Securities, by their
acceptance of the same, shall be deemed to have agreed to be bound by the
provisions hereof and to have ratified the agreements of, and the grant of the
Pledge hereunder by, the Purchase Contract Agent.
Section 11.5 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 11.6 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 11.7 Expenses, etc. The Company agrees to reimburse the
Collateral Agent and the Securities Intermediary for: (a) all reasonable
out-of-pocket costs and expenses of the Collateral Agent and the Securities
Intermediary (including, without limitation, the reasonable fees and expenses of
counsel to the Collateral Agent and the Securities Intermediary), in connection
with (i) the negotiation, preparation, execution and delivery or performance of
this Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement; (b) all reasonable costs and expenses of the Collateral
Agent and the Securities Intermediary (including, without limitation, reasonable
fees and expenses of counsel) in connection with (i) any enforcement or
proceedings resulting or incurred in connection with causing any Holder of
Securities to satisfy its obligations under the Purchase Contracts forming a
part of the Securities and (ii) the enforcement of this Section 11.7; and (c)
all transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement or
any other document referred to herein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated
hereby.
Section 11.8 Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time hereunder, shall be absolute and unconditional irrespective of:
24
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of the Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase Contract
Agreement or any Purchase Contract or any other agreement or instrument
relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BANK UNITED CORP., The First National Bank of Chicago,
as Purchase Contract Agent and as
a Delaware corporation attorney-in-fact of the Holders
from time to time of the Securities
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
0000 Xxxxxxxxx Xxxxxxx One First National Plaza
Suite 3200 Suite 0126
Houston, TX 77027 Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq. Attention: Corporate Trust Department
Telecopy: 000-000-0000 Telecopy: 000-000-0000
THE BANK OF NEW YORK, THE BANK OF NEW YORK
as Collateral Agent as Securities Intermediary
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
The Bank of New York The Bank of New York
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Corporate Trust Attention: Corporate Trust
Administration Administration
Telecopy: 000-000-0000 Telecopy: 000-000-0000
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury PIES)
The National Bank of New York
Attention: Corporate Trust Administration
Telecopy: 000-000-0000
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent and as
Securities Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
We hereby notify you in accordance with Section 5.2 of the Pledge
Agreement that the holder of securities named below (the "Holder") has elected
to substitute $__________ Value of Treasury Securities or security entitlements
thereto in exchange for an equal Value of Pledged Preferred Stock and has
delivered to the undersigned a notice stating that the Holder has Transferred
such Treasury Securities or security entitlements thereto to the Securities
Intermediary, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, to release to the undersigned an equal
Value of Pledged Preferred Stock in accordance with Section 5.2 of the Pledge
Agreement.
The First National Bank of Chicago
Date: _______________ By:______________________________
Name:
Title:
2
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Pledged Preferred Stock:
-------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
---------------------------
Address
---------------------------
---------------------------
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury PIES)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 000-000-0000
Re: ________ PIES of Bank United Corp.
(the "Company")
Securities Account No. 016335 entitled "The Bank of New York,
as Collateral Agent, Securities Account Bank United"
(the "Collateral Account")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, The First National Bank of Chicago, as
Purchase Contract Agent and as attorney-in-fact for the holders of PIES from
time to time, and the undersigned, as Collateral Agent and Securities
Intermediary. Capitalized terms used herein but not defined shall have the
meanings set forth in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities
or security entitlements thereto has been credited to the Collateral Account by
or for the benefit of _________, as Holder of PIES (the "Holder"), you are
hereby instructed to release from the Collateral Account an equal Value of
Shares of Preferred Stock or security entitlements thereto by Transfer to the
Purchase Contract Agent.
The Bank of New York
Dated:_______________ By:________________________________
Name:
Title:
2
Please print name and address of Holder:
-------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
---------------------------
Address
---------------------------
---------------------------
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate PIES)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 000-000-0000
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent and as
Securities Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time. Capitalized terms
used herein but not defined shall have the meanings set forth in the Pledge
Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute $__________ Value of Shares of Preferred Stock or security
entitlements thereto in exchange for $__________ Value of Pledged Treasury
Securities and has delivered to the undersigned a notice stating that the Holder
has Transferred such Shares of Preferred Stock or security entitlements thereto
to the Securities Intermediary, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Shares of Preferred Stock or security entitlements
thereto have been credited to the Collateral Account, to release to the
undersigned $__________ Value of Treasury Securities or security entitlements
thereto related to _____ Treasury PIES of such Holder in accordance with Section
5.3(a) of the Pledge Agreement.
The First National Bank of Chicago
Date: ____________________________ By:_______________________________
Name:
Title:
2
Please print name and address of Holder electing to substitute Pledged Preferred
Stock or security entitlements thereto for Pledged Treasury Securities:
-------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
---------------------------
Address
---------------------------
---------------------------
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate PIES)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 000-000-0000
Re: ________ PIES of Bank United Corp.
(the "Company")
Securities Account No. 016335 entitled "The Bank of New York,
as Collateral Agent, Securities Account Bank United"
(the "Collateral Account")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary, The
First National Bank of Chicago, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time, and the undersigned,
as Collateral Agent. Capitalized terms used herein but not defined shall have
the meanings set forth in the Pledge Agreement.
When you have confirmed that $_________ Value of Shares of Preferred
Stock or security entitlements thereto has been credited to the Collateral
Account by or for the benefit of _________, as Holder of PIES (the "Holder"),
you are hereby instructed to release from the Collateral Account $__________
Value of Treasury Securities or security entitlements thereto by Transfer to the
Purchase Contract Agent.
The Bank of New York
Dated: ______________________ By _______________________________
Name:
Title:
2
Please print name and address of Holder:
-------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
---------------------------
Address
---------------------------
---------------------------
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The First National Bank of Chicago
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), by and among you, the Company, and the undersigned, as
Securities Intermediary and Collateral Agent. Unless otherwise defined herein,
terms defined in the Pledge Agreement are used herein as defined therein
In accordance with Section 5.5(d) of the Pledge Agreement, we hereby
notify you that as of 11:00 a.m., [(on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date)], we have received (i) $_____
in immediately available funds paid in an aggregate amount equal to the Purchase
Price to the Company on the Purchase Contract Settlement Date with respect to
__________ Corporate PIES and (ii) $_________ in immediately available funds
paid in an aggregate amount equal to the Purchase Price to the Company on the
Purchase Contract Settlement Date with respect to ______ Treasury PIES.
The Bank of New York
Date: By:________________________________
Name:
Title:
