Amendment No. 1
to
PLEDGE AGREEMENT
This Amendment No. 1, dated February 9, 2001, amends the Pledge
Agreement (the "Agreement") originally made and entered into as of the 10th day
of August, 1999, by and between Bank United Corp., a Delaware corporation ("Bank
United"), Bank One N.A. (under its former name, The First National Bank of
Chicago), a national banking association ("Bank One"), and The Bank of New York,
as permitted by Section 10.1 of the Agreement.
WHEREAS, Washington Mutual, Inc., a Washington corporation ("Washington
Mutual") and Bank United have entered into an Agreement and Plan of Merger dated
August 18, 2000, as amended (the "Merger Agreement") whereby Bank United will
merge (the "Merger") with and into Washington Mutual and Washington Mutual will
be the surviving corporation.
WHEREAS, Bank United has also agreed that immediately prior to the
Merger it will effect a corporate reorganization (the "Reorganization") by
merging a wholly owned subsidiary of Bank United with and into Bank United.
WHEREAS, as a result of the Merger, each Bank United 8% Premium Income
Equity Securities ("Bank United PIES") will automatically convert into the right
to receive a Washington Mutual 8% Premium Income Equity Securities (a
"Replacement PIES") with substantially identical rights and preferences as the
Bank United PIES but with such appropriate and proportionate adjustments must be
made to reflect the Reorganization and the Merger.
WHEREAS, Washington Mutual, The Bank of New York and Bank One have
agreed that the Replacement PIES be issued pursuant to the Agreement and that
certain Purchase Contract Agreement between Bank United and Bank One (under its
prior name The First National Bank of Chicago) dated August 10, 1999, as amended
(the "Purchase Contract Agreement").
WHEREAS, Washington Mutual, as successor to Bank United, The Bank of
New York and Bank One have agreed to amend the Agreement to make any appropriate
and proportionate adjustments to reflect the Reorganization, the Merger and the
issuance of Replacement PIES.
WASHINGTON MUTUAL AND BANK ONE AGREE AS FOLLOWS:
1. Each capitalized term used but not defined in this Amendment
No. 1 shall have the meaning provided for such term in the Agreement.
2. This Amendment No. 1 shall be effective on the effective date
of the Merger. If the Merger does not become effective, this Amendment No. 1
will not be effective.
3. Washington Mutual assumes all of the obligations of Bank
United under this Agreement, the Purchase Contracts and the Purchase Contract
Agreement.
4. The definition of "Company" in Section 1.1(e) of the Agreement
is replaced in its entirety with the following:
"Company" means Washington Mutual, Inc. until a successor
shall have become such pursuant to the applicable provision of
this Agreement, and thereafter "Company" shall mean such
successor.
5. The contact information for the Company set forth in on the last
page of the Agreement is replaced with the following:
Address for Notices:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇
6. Exhibits A, B, C, D, and E to the Agreement are replaced in
their entirety with Exhibits A, B, C, D, and E, respectively, attached hereto.
7. Except as specifically amended by this Amendment No. 1, the
Agreement shall remain in full force and effect.
8. This Amendment No. 1 may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
the executed counterparts taken together shall be deemed to be one originally
executed document.
9. This Amendment No. 1 shall be governed and construed in
accordance with the laws of the State of New York, without regard to any
applicable conflicts of law.
[Signature Page Follows]
2
IN WITNESS WHEREOF, Washington Mutual, The Bank of New York and Bank
One have caused this Amendment No. 1 to be executed by their respective officers
hereunto duly authorized as of the date first above written.
WASHINGTON MUTUAL, INC.
By:
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Name ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Executive Vice President
BANK ONE N.A., as Purchase Contract Agent
and as an attorney-in-fact of the Holders
from time to time of the Securities
By:
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Name:
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Title:
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THE BANK OF NEW YORK, as Collateral Agent
By:
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Name:
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Title:
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THE BANK OF NEW YORK, as Securities
Intermediary
By:
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Name:
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Title:
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Exhibit A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury PIES)
The Bank of New York
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Attention: Corporate Trust Administration
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Re: ________ PIES of Washington Mutual, Inc. (the "Company")
Please refer to the Pledge Agreement dated as of August 10, 1999, as
amended (the "Pledge Agreement"), among the Company (through its predecessor
entity, Bank United Corp.), you, as Collateral Agent and as Securities
Intermediary, and the undersigned (under its prior name, The First National Bank
of Chicago), 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.
Bank One N.A.
Date: _______________ By:______________________________
Name:
Title:
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Pledged Preferred Stock:
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Name Social Security or other
Taxpayer Identification Number,
if any
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Address
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EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury PIES)
The Bank of New York
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Attention: Corporate Trust Administration
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Re: ________ PIES of Washington Mutual, Inc. (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, as
amended (the "Pledge Agreement"), among the Company (through its predecessor
entity, Bank United Corp.), Bank One N.A. (under its prior name, 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:
Please print name and address of Holder:
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Name Social Security or other
Taxpayer Identification Number,
if any
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Address
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EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate PIES)
The Bank of New York
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Attention: Corporate Trust Administration
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Re: ________ PIES of Washington Mutual, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of August 10, 1999, as
amended (the "Pledge Agreement"), among the Company (through its predecessor
entity, Bank United Corp.), you, as Collateral Agent and as Securities
Intermediary, and the undersigned (under its prior name, The First National Bank
of Chicago), 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.
Bank One N.A.
Date: ____________________________ By:_______________________________
Name:
Title:
Please print name and address of Holder electing to substitute Pledged Preferred
Stock or security entitlements thereto for Pledged Treasury Securities:
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Name Social Security or other Taxpayer
Identification Number, if any
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Address
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EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate PIES)
The Bank of New York
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Attention: Corporate Trust Administration
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Re: ________ PIES of Washington Mutual, Inc. (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, as
amended (the "Pledge Agreement"), among the Company (through its predecessor
entity, Bank United Corp.), you, as Securities Intermediary, Bank One (under its
prior name, 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:
Please print name and address of Holder:
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Name Social Security or other
Taxpayer Identification Number,
if any
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Address
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EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
Bank One N.A.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
Re: ________ PIES of Washington Mutual, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of August 10, 1999, as
amended (the "Pledge Agreement"), by and among you (under your prior name, The
First National Bank of Chicago), the Company (through its predecessor entity,
Bank United Corp.), 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:
