EXHIBIT 4.16
FORM OF
BANK UNITED CORP.
SERIES B PREFERRED STOCK
August [ ], 1999
▇▇▇▇▇▇ BROTHERS INC.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Bank United Corp., a Delaware corporation (the "Company"), is
issuing today 2,000,000 shares of its Series B Preferred Stock, liquidation
preference of $50 per share (the "Preferred Stock"), pursuant to a Certificate
of Designations filed with the Secretary of State of the State of Delaware (the
"Certificate of Designations"). Capitalized terms used but not defined in this
(this "Agreement") shall have the meanings set forth in
the Certificate of Designations.
The Remarketing (as defined below) of the Preferred Stock is
provided for in the Certificate of Designations. As used in this Agreement, the
term "Remarketed Preferred Stock" means the Preferred Stock subject to the
Remarketing on the fifth Business Day prior to the Purchase Contract Settlement
Date; the term "Remarketing Procedures" means the procedures in connection with
the Remarketing of the Preferred Stock described in the Certificate of
Designations; and the term "Remarketing" means the remarketing of the Remarketed
Preferred Stock pursuant to the Remarketing Procedures.
Section 1. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING Agent. (a)
The Company hereby appoints ▇▇▇▇▇▇ Brothers as exclusive remarketing agent (the
"Remarketing Agent") for the purpose of (i) Remarketing the Remarketed Preferred
Stock on behalf of the holders thereof and (ii) performing such other duties as
are assigned to the Remarketing Agent in the Remarketing Procedures, all in
accordance with and pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially reasonable
efforts to remarket the Remarketed Preferred Stock tendered or deemed tendered
to the Remarketing Agent in the Remarketing, (ii) to notify the Company promptly
of the Reset Rate and (iii) to carry out such other duties as are assigned to
the Remarketing Agent in the Remarketing Procedures, all in accordance with the
provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase
Contract Settlement Date (the "Remarketing Date"), the Remarketing Agent shall
use commercially
reasonable efforts to remarket, at a price equal to 100.50% of the aggregate
liquidation preference thereof, the Remarketed Preferred Stock tendered or
deemed tendered for purchase.
(d) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Securities tendered or deemed tendered for purchase at a price of 100.50% of the
aggregate liquidation preference of such Remarketed Preferred Stock prior to
4:00 p.m., New York City time, on the Remarketing Date, the Remarketing Agent
shall determine the Reset Rate, which shall be the rate per annum (rounded to
the nearest one-thousandth (0.001) of one percent per annum) that the
Remarketing Agent determines, in its sole judgment, to be the lowest rate per
annum that will enable it to remarket all Remarketed Preferred Stock tendered or
deemed tendered for Remarketing.
(e) If none of the holders of Remarketed Preferred Stock elects to
have Remarketed Preferred Stock Remarketed in the Remarketing, the Remarketing
Agent shall, in its sole discretion, determine the rate that would have been
established had a Remarketing of all the Preferred Stock been held on the
Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 p.m., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all Remarketed Preferred Stock
tendered or deemed tendered for purchase, a failed Remarketing (the "Failed
Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall
so advise by telephone the Depositary and the Company. If a Failed Remarketing
occurs, the Reset Rate will be equal to (i) the "AA" Composite Commercial Paper
Rate on the Remarketing Date, plus (ii) a spread as set forth in the Certificate
of Designations.
(g) By approximately 4:30 p.m., New York City time, on the
Remarketing Date, PROVIDED that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Depositary and the Company
of the Reset Rate determined in the Remarketing and the number of shares of
Remarketed Preferred Stock sold in the Remarketing, (ii) each purchaser (or the
Depositary Participant thereof) of the Reset Rate and the number of shares of
Remarketed Preferred Stock such purchaser is to purchase and (iii) each
purchaser to give instructions to its Depositary Participant to pay the purchase
price on the Purchase Contract Settlement Date in same day funds against
delivery of the shares of Remarketed Preferred Stock purchased through the
facilities of the Depositary.
(h) The Remarketing Agent shall remit (i) to the Collateral Agent
proceeds of the Remarketed Preferred Stock subject to the Pledge Agreement in an
amount equal to 100% of the aggregate liquidation preference of such Remarketed
Preferred Stock and (ii) to the Depositary Participant of the seller of
Remarketed Preferred Stock not subject to the Pledge Agreement proceeds of such
Remarketed Preferred Stock in an amount equal to 100% of the aggregate
liquidation preference of such Remarketed Preferred Stock.
2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company hereby represents and warrants to the Remarketing Agent (i) on
and as of the date hereof, (ii) on and as of the date the Prospectus or other
Remarketing Materials (each, as defined in Section 2(a) below) which are first
distributed in connection with the Remarketing (the "Commencement Date"), (iii)
on and as of the Remarketing Date and (iv) on and as of the Purchase Contract
Settlement Date that:
(a) Registration statements on Form S-3 (File Nos. 333-75937 and
333-83797) and an amendment or amendments thereto with respect to the
initial offering of the Preferred Stock have (i) been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act; and a
registration statement or registration statements on Form S-3, if required
to be filed in connection with the Remarketing, may also be prepared by
the Company in conformity with the requirements of the Securities Act and
the Rules and Regulations and filed with the Commission under the
Securities Act. Copies of such registration statements that have become
effective and the amendment or amendments to such registration statements
have been delivered by the Company to you. As used in this Agreement,
"Effective Time" means the date and time as of which the last of such
registration statements that have become effective or may be filed, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time of such last registration statement; "Preliminary
Prospectus" means each prospectus included in such last registration
statement, or amendment thereto, before it became effective under the
Securities Act and any prospectus filed by the Company with your consent
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such last registration statement, as amended at its
Effective Time, including documents incorporated by reference therein at
such time and, if applicable, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations, including any information deemed to be part of such
Registration Statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; and "Prospectus" means such
final prospectus, as first filed pursuant to Rule 424(b) of the Rules and
Regulations. Reference made herein to any Preliminary Prospectus, the
Prospectus or any other information furnished by the Company to the
Remarketing Agent for distribution to investors in connection with the
Remarketing (the "Remarketing Materials") shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, or, in the case of
Remarketing Materials, referred to as incorporated by reference therein,
and any reference to any amendment or supplement to any Preliminary
Prospectus, the Prospectus or the Remarketing Materials shall be deemed to
refer to and include any document filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of such
Preliminary Prospectus or the Prospectus incorporated by reference therein
pursuant to Item 12 of Form S-3 or, if so incorporated, the Remarketing
Materials, as the case may be; and any reference to any amendment to
the Registration Statement shall be deemed to include any annual report of
the Company filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement.
(b) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission,
as the case may be, will conform) in all respects to the requirements of
the Securities Act and the Rules and Regulations, and the Registration
Statement, the Prospectus and the Remarketing Materials do not and will
not, as of the Effective Date (as to the Registration Statement and any
amendment thereto), as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) and as of the Commencement Date,
Remarketing Date and Purchase Contract Settlement Date (as to any
Remarketing Materials) contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; PROVIDED that no
representation and warranty is made as to information contained in or
omitted from the Registration Statement, the Prospectus or the Remarketing
Materials in reliance upon and in conformity with written information
furnished to the Company by the Remarketing Agent specifically for
inclusion therein; and the Commission has not issued an order preventing
or suspending the use of the Registration Statement, any Preliminary
Prospectus, the Prospectus or the Remarketing Materials.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with Commission, as the case may be, will conform
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus or
in any Remarketing Materials, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction;
and each subsidiary (as defined in Section 14 hereof) of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation.
(e) Bank United (the "Bank") has been duly organized and is validly
existing as a federally chartered savings bank in good standing under the
laws of the United States, and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Final Prospectus. Each subsidiary of the Bank has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation and has the power and
authority to own, lease and operate its properties and to conduct its
business as described in the Final Prospectus.
(f) The Company has an authorized capitalization as set forth in the
Prospectus and in any Remarketing Materials; all of the issued shares of
capital stock of the Company and each wholly-owned subsidiary of the
Company (including, without limitation, the Bank) have been duly and
validly authorized and issued and are fully paid and non-assessable; and
all of the issued shares of capital stock of each subsidiary of the
Company, including without limitation the Bank, [other than [ ], ] except
as set forth in the Prospectus, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(g) The Bank constitutes the only "significant subsidiary" (as such
term is defined in Rule 1-02 of Regulation S-X) of the Company (each, a
"Significant Subsidiary").
(h) The Corporate PIES have been duly authorized by the Company, and
when duly executed by the Company (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by the
Company and, upon payment therefor as set forth herein, will be duly and
validly issued and outstanding, and will constitute valid and binding
obligations of the Company entitled to the benefits of the Purchase
Contract Agreement and enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles, regardless of whether enforcement is considered in a
proceeding in equity or at law (the "Bankruptcy Exceptions"), and an
implied covenant of good faith and fair dealing.
(i) The shares of Preferred Stock and Remarketed Preferred Stock
have been duly authorized by the Company and, when issued and delivered
against payment therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable.
(j) This Agreement has been duly authorized, executed and delivered
by the Company.
(k) The Purchase Contract Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent) and
delivered by the Company, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(l) The Pledge Agreement has been duly authorized by the Company
and, when duly executed by the proper officers of the Company (assuming
due execution and delivery by the Purchase Contract Agent, the Securities
Intermediary and the Collateral Agent) and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by the Bankruptcy Exceptions and an
implied covenant of good faith and fair dealing.
(m) The Remarketed Preferred Stock, the Certificate of Designations
and the , when the Remarketed Preferred Stock is
delivered pursuant to this Agreement, will conform to the descriptions
thereof contained in the Prospectus and in any Remarketing Materials.
(n) The execution, delivery and performance of this Agreement and
the Certificate of Designations by the Company, the consummation by the
Company of the transactions contemplated hereby and thereby and the
issuance and delivery of the Preferred Stock and the Remarketed Preferred
Stock (collectively, the "Transactions") did not and will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their respective
properties or assets; and except for such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Securities Act, the Exchange Act and applicable state securities laws
in connection with the initial distribution of the Preferred Stock and the
Remarketed Preferred Stock or the Remarketing, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the Transactions.
(o) There are no contracts, agreements or understandings between (i)
the Company and (ii) any person granting such person the right to require
the Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act [, in each case other than [
]].
(p Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or in any Remarketing
Materials, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, which could, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole or upon
the ability of the Company to perform their obligations under this
Agreement (each, a "Material Adverse Effect"), otherwise than as set forth
or contemplated in the Prospectus and in any Remarketing Materials; and,
since such date, there has not been any material change in the
consolidated share capital or long-term debt of the Company and its
subsidiaries or the consolidated share capital or long-term debt of any
Significant Subsidiary or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus and in any Remarketing
Materials.
(q The financial statements filed as part of the Registration
Statement or incorporated by reference in the Prospectus or as presented
in any Remarketing Materials present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved; and the supporting
schedules included or incorporated by reference in the Prospectus or in
any Remarketing Materials present fairly the information required to be
stated therein.
(r Deloitte & Touche LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein or in any Remarketing Materials and who
have delivered the letter referred to in Section 5(g) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(s The Company and each Significant Subsidiary has good and
marketable title in fee simple to such of its fixed assets as are real
property and good and marketable title to its other assets reflected in
the most recent consolidated balance sheet incorporated by
reference in the Prospectus or in any Remarketing Materials, except
properties and assets that are leased or that are sold or otherwise
disposed of in the ordinary course of business after the date of said
balance sheet, subject to no mortgages, liens, charges or encumbrances of
any kind whatsoever (collectively, the "Liens") [other than [ ]].
(t Other than as set forth or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or to which any
property or asset of the Company or any of its subsidiaries is the subject
which could reasonably be expected individually or in the aggregate to
have a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others. No cease and desist
order has been entered by the Office of Thrift Supervision (the "OTS") or
the FDIC against the Company, the Bank or any of their respective
subsidiaries.
(u The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(v There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted
by the Rules and Regulations.
(w No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, including, without limitation, the OTS and the FDIC,
is necessary or required for the due authorization, execution and delivery
by the Company of this Agreement or for the performance by the Company of
the Transactions, except such as have been already obtained or will have
been obtained or made prior to the Closing Date (as defined in the
Underwriting Agreement, dated August [ ], 1999, between the Company and
▇▇▇▇▇▇ Brothers) or as may be required under the Securities Act or the
Rules and Regulations or state securities laws.
(x None of the Company nor any Significant Subsidiary has any
material contingent liability which is not disclosed in the Prospectus.
(y None of the Company nor any Significant Subsidiary (i) is in
violation of its charter or by-laws or similar constitutive documents,
(ii) is in default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject, except where
such defaults, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it or
its properties or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its properties or
assets or to the conduct of its business, except where such violations or
failures, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(z Neither the Company nor any subsidiary of the Company is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission thereunder.
(aa Each of the Company and each Significant Subsidiary has
statutory authority, franchises and consents free from burdensome
restrictions and adequate for the conduct of the business in which it is
engaged.
(bb In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act"), and the rules and regulations of
the Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank
holding company under the BHC Act and the BHC Rules.
(cc The Prospectus accurately describes the most restrictive of the
existing limitations on the payment of dividends by Bank United on its
shares of common stock held by the Company.
3. FEES AND EXPENSES. (a) For the performance of its services as
Remarketing Agent hereunder, the Remarketing Agent shall retain on the Purchase
Contract Settlement Date 0.50% of the amount of the proceeds received in the
Remarketing.
(b The Company agrees to pay (i) the costs incident to the
preparation and printing of the Registration Statement, Prospectus and any
Remarketing Materials and any amendments or supplements thereto; (ii) the costs
of distributing the Registration Statement, Prospectus and any Remarketing
Materials and any amendments or supplements thereto; (iii) the fees and expenses
of qualifying the Remarketed Securities under the securities laws of the several
jurisdictions as provided in Section 4(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Remarketing Agent); (iv) all other costs and expenses incident to
the performance of the obligations of the Company hereunder; and (v) the
reasonable fees and expenses of counsel to the Remarketing Agent in connection
with their duties hereunder.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees to use its
reasonable best efforts:
(a To prepare any registration statement or prospectus, if required,
in connection with the Remarketing, in a form approved by the Remarketing
Agent and to file any such prospectus pursuant to the Securities Act
within the period required by the Rules and Regulations; to advise the
Remarketing Agent, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish the Remarketing Agent with copies thereof;
to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
Remarketed Securities; to advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the Prospectus,
of the suspension of the qualification of any shares of the Remarketed
Preferred Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b To furnish promptly to the Remarketing Agent and to counsel for
the Remarketing Agent a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith.
(c To deliver promptly to the Remarketing Agent in New York City
such number of the following documents as the Remarketing Agent shall
request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto, (ii) the Prospectus
and any amended or supplemented Prospectus, (iii any document incorporated
by reference in the Prospectus (excluding exhibits thereto) and (iv) any
Remarketing Materials; and, if the delivery of a prospectus is required at
any time in connection with the Remarketing and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Remarketing Agent and, upon its request,
to file such document and to prepare and furnish without
charge to the Remarketing Agent and to any dealer in securities as many
copies as the Remarketing Agent may from time to time request of an
amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance.
(d To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission.
(e Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Remarketing Agent and counsel for the Remarketing Agent;
and not to file any such amendment or supplement which shall be
disapproved by the Remarketing Agent promptly after reasonable notice.
(f As soon as practicable after the Effective Date of the
Registration Statement to make generally available to the Company's
security holders and to deliver to the Remarketing Agent an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(g During a period of five years following the Effective Date of the
Registration Statement, to deliver to the Remarketing Agent copies of all
reports or other communications (financial or other) furnished to
shareholders of the Company, and deliver to the Remarketing Agent, (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed by the Company with the Commission or any national
securities exchange on which any of the Remarketed Securities or any class
of securities of the Company may be listed; and (ii) such additional
information concerning the business and financial condition of the Company
as the Remarketing Agent may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to the Company's shareholders generally or to the Commission).
(h Promptly from time to time to take such action as the Remarketing
Agent may reasonably request to qualify any shares of the Remarketed
Preferred Stock for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Securities; PROVIDED that in connection therewith, the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
5. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. The
obligations of the Remarketing Agent hereunder are subject to the accuracy, on
and as of the date when made, of the representations and warranties of the
Company contained herein, to the performance by the Company of its obligations
hereunder and to each of the following additional terms and conditions:
(a The Prospectus shall have been timely filed with the Commission;
no stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(b The Remarketing Agent shall not have discovered and disclosed to
the Company on or prior to the Remarketing Date that the Prospectus, the
Registration Statement or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to
state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Preferred Stock,
the PIES, the Remarketed Preferred Stock, the Prospectus, each
Registration Statement, the Remarketing Materials and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Remarketing Agent, and the Company shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d Counsel to the Company shall have furnished to the Remarketing
Agent its written opinion, as counsel to the Company, addressed to the
Remarketing Agent and dated the Remarketing Date, in form and substance
satisfactory to the Remarketing Agent, to the effect that:
(i The Company and each Significant Subsidiary have been duly
incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, with respective power and authority (corporate and
other) to own their respective properties and conduct their
businesses as described in the Prospectus.
(ii The Company has an authorized capitalization as set forth
in the Prospectus and in any Remarketing Materials, all of the
issued capital shares of the Company and each Significant Subsidiary
of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
and all of the issued shares of capital stock of each Significant
Subsidiary (except as set forth or incorporated by reference in the
Registration Statement) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(iii The Company and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as
to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified
in any such jurisdiction.
(iv There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of
the Preferred Stock or the Remarketed Preferred Stock pursuant to
the Company's charter or by-laws or any agreement or other
instrument known to such counsel.
(v To the best of such counsel's knowledge and other than as
set forth in the Prospectus or in any Remarketing Materials, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or to which any
property or asset of the Company or any of its subsidiaries is
subject which could reasonably be expected individually or in the
aggregate to have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries; and, to the best of such counsel's
knowledge and other than as set forth in the Prospectus, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vi The Registration Statement was declared effective under
the Securities Act, as of the date and time specified in such
opinion, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and, to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the
Commission.
(vii The Registration Statement, as of its Effective Date, and
the Prospectus, as of its date, and any further amendments or
supplements thereto, as of their respective dates, made by the
Company prior to the Purchase Contract Settlement Date (other than
the financial statements, related schedules and other financial data
contained therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements
of the Securities Act and the Rules and Regulations; and the
documents incorporated by
reference in the Prospectus and any further amendment or supplement
to any such incorporated document made by the Company prior to the
Purchase Contract Settlement Date (other than the financial
statements, related schedules and other financial data contained
therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case
may be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(viii The statements contained in the Prospectus under the
captions "Description of the PIES", "Description of the Purchase
Contracts", "Certain Provisions of the Purchase Contracts, the
Purchase Contract Agreement and the Pledge Agreement" and
"Description of the Preferred Stock" insofar as they purport to
constitute summaries of certain terms of documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(ix The shares of Preferred Stock and Remarketed Preferred
Stock have been duly authorized, by the Company and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and non-assessable.
(x This Agreement has been duly authorized, executed and
delivered by the Company.
(xi The Purchase Contract Agreement has been duly authorized
by the Company and, when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Purchase
Contract Agent) and delivered by the Company, will constitute a
valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(xii The Pledge Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Purchase
Contract Agent, the Securities Intermediary and the Collateral
Agent) and delivered by the Company, will constitute a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(xiii The Transactions will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company
or any of the Significant Subsidiaries is a party or by which the
Company or any of the Significant Subsidiaries is bound or to which
any of the properties or assets of the Company or any of the
Significant Subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Company or any of the Significant Subsidiaries or any statute, rule
or regulation or any order known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of the Significant Subsidiaries or any of their properties or
assets; and, except for the registration of the Preferred Stock and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the
Transactions.
(xiv Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the 1940 Act.
(xv Based upon current law and the assumptions stated or
referred to therein, the statements set forth in the Prospectus or
in the Remarketing Materials under the caption "United States
Federal Income Tax Consequences" insofar as they purport to
constitute summaries of matters of United States federal tax laws
and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in
all material respects.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of
America and the laws of the State of Delaware. Such counsel shall also
advise the Remarketing Agent that although such counsel is not passing
upon and assumes no responsibility or liability for the accuracy,
completeness or fairness of the statements contained in the documents
incorporated by reference in the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Remarketing Date,
they have no reason to believe that any of such documents (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion), when such documents became effective or
were filed with the Commission, as the case may be, contained, in the case
of a registration statement which became effective under the Securities
Act, an untrue statement of a material fact or omitted to state a material
fact required to be stated therein necessary to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Securities Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such documents were so
filed, not misleading. Such counsel shall also advise the Remarketing
Agent that although such counsel is not passing upon and, except as set
forth in clauses (viii) and (xv) above, assumes no responsibility or
liability for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus and the
Remarketing Materials and any further amendments and supplements thereto
made by the Company prior to such date, they have no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such date (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus and the Remarketing Materials or any
further amendment or supplement thereto made by the Company prior to such
Remarketing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or that, as of
such Remarketing Date, either the Registration Statement, the Prospectus
or the Remarketing Materials or any further amendment or supplement
thereto made by the Company prior to such Remarketing Date (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus or the Remarketing Materials or required to be described in
the Registration Statement, the Prospectus or the Remarketing Materials
which were not filed or incorporated by reference or described as
required.
(e Counsel to the Purchase Contract Agent shall have furnished to
the Remarketing Agent its written opinion, as counsel to the Purchase
Contract Agent, addressed to the Remarketing Agent and dated the
Remarketing Date, in form and substance satisfactory to the Remarketing
Agent, to the effect that:
(i The Purchase Contract Agent is duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the jurisdiction of its incorporation with all necessary
power and authority to execute, deliver and perform its obligations
under the Purchase Contract Agreement and the Pledge Agreement.
(ii The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement [in its capacity as Purchase Contract Agent or Securities
Intermediary, as applicable,] and the authentication and delivery of
the PIES have been duly authorized by all necessary corporate action
on the part of the Purchase Contract
Agent. The Purchase Contract Agreement and the Pledge Agreement have
been duly executed and delivered by the Purchase Contract Agent [in
its capacity as Purchase Contract Agent or Securities Intermediary,
as applicable,] and constitute the valid and binding agreements of
the Purchase Contract Agent [in its capacity as Purchase Contract
Agent or Securities Intermediary, as applicable,] enforceable
against the Purchase Contract Agent in accordance with their terms,
except as the enforcement thereof may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(iii The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent [in its capacity as Purchase Contract Agent or Securities
Intermediary, as applicable,] does not conflict with or constitute a
breach of the charter or by-laws of the Purchase Contract Agent.
(iv No consent, approval or authorization of, or registration
with or notice to, any state or federal governmental authority or
agency is required for the execution, delivery or performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement [in its capacity as Purchase Contract Agent or
Securities Intermediary, as applicable].
(f Counsel to the Collateral Agent shall have furnished to the
Remarketing Agent its written opinion, as counsel to the Collateral Agent,
and addressed to the Remarketing Agent and dated the Remarketing Date, in
form and substance satisfactory to the Remarketing Agent, to the effect
that:
(i The Collateral Agent is duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the jurisdiction of incorporation with all necessary power and
authority to execute, deliver and perform its obligations under the
Pledge Agreement.
(ii The execution, delivery and performance by the Collateral
Agent of the Pledge Agreement have been duly authorized by all
necessary corporate action on the part of the Collateral Agent. The
Pledge Agreement has been duly executed and delivered by the
Collateral Agent and constitutes the valid and binding agreement of
the Collateral Agent, enforceable against the Collateral Agent in
accordance with its terms, except as the enforcement thereof may be
limited by the Bankruptcy Exception and an implied covenant of good
faith and fair dealing.
(iii The execution, delivery and performance of the Pledge
Agreement by the Collateral Agent does not conflict with or
constitute a breach of the charter or by-laws of the Collateral
Agent.
(iv No consent, approval or authorization of, or registration
with or notice to, any state or Federal governmental authority or
agency is required for the execution, delivery or performance by the
Collateral Agent of the Pledge Agreement.
(g On the Remarketing Date, the Company shall have furnished to the
Remarketing Agent a letter addressed to the Remarketing Agent and dated
such date, in form and substance satisfactory to the Remarketing Agent, of
Deloitte & Touche LLP, or such other firm of nationally recognized
independent public accountants satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants" "comfort letters" with respect to certain financial
information contained in the Prospectus and in the Remarketing Materials.
(h The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of (A) the Company's Chairman of
the Board and President, or its Executive Vice President and (B) its chief
financial officer, stating that:
(i The representations, warranties and agreements of the
Company in Section 2 are true and correct as of the Remarketing
Date; the Company has complied with all its agreements contained
herein; and the conditions contained in Section 5(a) have been
fulfilled;
(ii (A) Neither the Company, the Bank nor any of the Company's
other subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus or in the Remarketing Materials any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which
could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus or in the Remarketing Materials and
(B) since the respective dates as of which information is given in
the Prospectus or in the Remarketing Materials, there has not been
any material change in the consolidated share capital or long-term
debt of the Company and its subsidiaries (including, without
limitation, the Bank) or the consolidated share capital or long-term
debt of any Significant Subsidiary (including, without limitation,
the Bank) or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, including without limitation the Bank
(taken as a whole), otherwise than as set forth or contemplated in
the Prospectus or the Remarketing Materials; and
(iii They have carefully examined the Registration Statement,
the Prospectus and the Remarketing Materials and, in their opinion
(A) the
Registration Statement, as of its Effective Date, and the Prospectus
and the Remarketing Materials, as of their respective dates, did not
include any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (B) since such
dates, no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement, the
Prospectus or the Remarketing Materials.
(i (i) Neither the Company nor any of its subsidiaries (including,
without limitation, the Bank) shall have sustained since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus and in the Remarketing Materials any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus or in the Remarketing Materials or
(ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus or in the Remarketing
Materials, the effect of which, in any such case described in clause (i)
or (ii), is, in the judgment of the Remarketing Agent, so material and
adverse as to make it impracticable or inadvisable to proceed with the
Remarketing on the terms and in the manner contemplated in the Prospectus
and in the Remarketing Materials.
(j Without the prior written consent of the Remarketing Agent, the
Certificate of Designations shall not have been amended in any manner, or
otherwise contain any provision contained therein as of the date hereof
that, in the opinion of the Remarketing Agent, materially changes the
nature of the Remarketed Preferred Stock or the Remarketing Procedures.
(k Subsequent to the execution and delivery of this Agreement, (i)
no downgrading shall have occurred in the rating accorded the Preferred
Stock or any of the Company's, any Significant Subsidiary's (including,
without limitation, the Bank) debt securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities Act and
(ii no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Preferred Stock or any of the Company's, any Significant
Subsidiary's (including, without limitation, the Bank) debt securities.
(l Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices shall
have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Remarketing Agent,
impracticable or inadvisable to proceed with the Remarketing on the terms
and in the manner contemplated in the Prospectus or in the Remarketing
Materials.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Remarketing Agent.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify
and hold harmless the Remarketing Agent, its officers and employees and each
person, if any, who controls the Remarketing Agent within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of the
Remarketed Preferred Stock), to which the Remarketing Agent or that officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Remarketing Materials or in any amendment or
supplement thereto, or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of qualifying any or all
of the Remarketed Preferred Stock under the securities laws of any state or
other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Remarketing Materials or in any amendment or supplement
thereto, or in any Blue Sky Application, any material fact required to be stated
therein or necessary to make the statements therein not misleading and shall
reimburse the Remarketing Agent and each such officer, employee and controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Remarketing Agent or that officer, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the
Remarketing Materials or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company by or on behalf of the Remarketing Agent specifically
for inclusion therein and described in a letter from the Remarketing Agent to
the Company and PROVIDED FURTHER, that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of the Remarketing Agent, its
officers or employees or any person controlling the Remarketing Agent on account
of any loss, claim, damage, liability or action arising from the sale of the
Remarketed Preferred Stock to any person by the Remarketing Agent if the
Remarketing Agent failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Prospectus, unless such failure
resulted from non-compliance by the Company with Section 4(c). For purposes of
the last proviso to the immediately preceding sentence, the term "Prospectus"
shall not be deemed to include the documents incorporated therein by reference,
and the Remarketing Agent shall not be obligated to send or give any supplement
or amendment to any document incorporated by reference in any Preliminary
Prospectus or the Prospectus to any person other than a person to whom the
Remarketing Agent had delivered such incorporated document or documents in
response to a written request therefor. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to the
Remarketing Agent or to any officer, employee or controlling person of the
Remarketing Agent.
(b The Remarketing Agent shall indemnify and hold harmless the
Company, its officers and employees, its directors and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company, any such director, officer or employee or any
such controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Remarketing Materials or in any amendment or
supplement thereto or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Remarketing Materials or in any amendment or
supplement thereto, or in any Blue Sky Application, any material fact required
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company by or on behalf
of the Remarketing Agent specifically for inclusion therein and described in a
letter from the Remarketing Agent to the Company and shall reimburse the Company
and any such director, officer or employee or such controlling person for any
legal or other expenses reasonably incurred by the Company or any such director
or officer or any such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which the Remarketing Agent may otherwise have to
the Company or any such director or officer or any such controlling person.
(c Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Remarketing Agent shall have the right to employ counsel to represent
jointly the Remarketing Agent and its officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Remarketing Agent against the Company under
this Section 6 if, in the reasonable judgment of the Remarketing Agent, it is
advisable for the Remarketing Agent and those officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d If the indemnification provided for in this Section 6 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agent on the other hand from the Remarketing or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Remarketing Agent on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Remarketing Agent on the other
with respect to such offering shall be deemed to be in the same proportion as
the total liquidation or principal amount of the Remarketed Securities less the
fee paid to the Remarketing Agent pursuant to Section 3(a) of this Agreement, on
the one hand, and the total fees received by the Remarketing Agent pursuant to
such Section 3(a), on the other hand, bear to the total liquidation preference
of the Remarketed Preferred Stock. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Remarketing Agent on the other
hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Remarketing Agent agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 6(d)
shall be deemed to include, for purposes of this Section 6(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Remarketing Agent shall not be required to
contribute any amount in excess of the amount by which the fees received by it
under Section 3 exceed the amount of any damages which the Remarketing Agent has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT. The Remarketing
Agent may resign and be discharged from its duties and obligations hereunder,
and the Company may remove the Remarketing Agent, by giving 60 days' prior
written notice, in the case of a resignation, to the Company and the Depositary
and, in the case of a removal, the removed Remarketing Agent and the Depositary;
PROVIDED, HOWEVER, that (i) the Company may not remove the Remarketing Agent
unless (A) the Remarketing Agent becomes involved as a debtor in a bankruptcy,
insolvency or similar proceeding, (B) the Remarketing Agent shall not be among
the 15 underwriters with the largest volume underwritten in dollars, on a lead
or co-managed basis, of U.S. domestic debt securities during the twelve-month
period ended as of the last calendar quarter preceding the Remarketing Date or
(C) the Remarketing Agent shall be subject to one or more legal restrictions
preventing the performance of its obligations hereunder and (ii) no such
resignation nor any such removal shall become effective until the Company shall
have appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent
and such successor Remarketing Agent shall have entered into a with the Company in which it shall have agreed to conduct the
Remarketing in accordance with the Remarketing Procedures. In any such case, the
Company will use its reasonable efforts to appoint a successor Remarketing Agent
and enter into such a with such person as soon as
reasonably practicable. The provisions of Sections 3 and 6 shall survive the
resignation or removal of any Remarketing Agent pursuant to this Agreement.
8. DEALING IN THE REMARKETED PREFERRED STOCK. The Remarketing Agent,
when acting as a Remarketing Agent or in its individual or any other capacity,
may, to the extent permitted by law, buy, sell, hold and deal in any shares of
the Remarketed Preferred Stock. The Remarketing Agent may exercise any vote or
join in any action which any beneficial owner of shares of Remarketed Preferred
Stock may be entitled to exercise or take pursuant to the Certificate of
Designations with like effect as if it did not act in any capacity hereunder.
The Remarketing Agent, in its individual capacity, either as principal or agent,
may also engage in or have an interest in any financial or other transaction
with the Company as freely as if it did not act in any capacity hereunder.
9. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Agreement and the Certificate of Designations. No implied
covenants or obligations of or against the Remarketing Agent shall be read into
this Agreement or the Certificate of Designations. In the absence of bad faith
on the part of the Remarketing Agent, the Remarketing Agent may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement or the Certificate of Designations as to the
truth of the statements expressed in any of such documents. The Remarketing
Agent shall be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party or
parties. The Remarketing Agent, acting under this Agreement, shall incur no
liability to the Company or to any holder of Remarketed Preferred Stock in its
individual capacity or as Remarketing Agent for any action or failure to act, on
its part in connection with a Remarketing or otherwise, except if such liability
is judicially determined to have resulted from the gross negligence or willful
misconduct on its part.
10. TERMINATION. This Agreement shall terminate as to the
Remarketing Agent on the effective date of the resignation or removal of the
Remarketing Agent pursuant to Section 7. In addition, the obligations of the
Remarketing Agent hereunder may be terminated by it by notice given to the
Company prior to 10:00 a.m., New York City time, on the Remarketing Date if,
prior to that time, any of the events described in Sections 5(i), (j), (k) or
(l) shall have occurred.
11. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three
World Financial Center, New York, New York 10285, Attention: Syndicate
Department (Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: [ ] (Facsimile:
[ ]).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Remarketing Agent, the Company
and its successors. This Agreement and the terms and provisions hereof are for
the sole benefit of only those persons, except that (x) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of the Remarketing Agent and the person or persons, if any, who
control the Remarketing Agent within the meaning of Section 15 of the Securities
Act and (y) the indemnity agreement of the Remarketing Agent contained in
Section 6(b) of this Agreement shall be deemed to be for the benefit of
directors, officers and employees of the Company and any person controlling the
Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to herein, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision contained herein.
13. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Remarketing Agent contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the Remarketing and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 under the Securities Act.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the
Company, the Trust and the Remarketing Agent, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
BANK UNITED CORP., a Delaware corporation,
By: __________________________________
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
By: __________________________________
AUTHORIZED REPRESENTATIVE
