EXHIBIT 4.94
LETTER OF CREDIT REIMBURSEMENT AGREEMENT
THIS AGREEMENT, dated as of November 4, 1998, is between BANKUNITED, FSB, having
its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 (the
"Member"), and FEDERAL HOME LOAN BANK OF ATLANTA, Atlanta, Georgia (the "Bank").
WHEREAS, the Member proposes to issue from time to time its promissory notes in
an aggregate principal amount up to $500 million (the "Senior Notes"), pursuant
to an Indenture to be dated as of November 4, 1998, a copy of which has
heretofore been furnished to the Bank (the "Indenture") between the Member and
The Bank of New York, as Trustee (the "Beneficiary"), to which the Bank shall
join as a consenting party; and
WHEREAS, the issuance of the Senior Notes will provide funds to the Member that
will promote home financing or housing activity and encourage and assist the
Member's asset and liability management; and
WHEREAS, to provide for the payment of interest, principal and Redemption
Premium (as defined in the Indenture), if any, on the Senior Notes, the Member
has requested the Bank to issue its letter of credit in the form attached as
Exhibit A hereto (such letter of credit, as the same may from time to time be
supplemented or amended, being hereinafter referred to as the "Credit") for the
benefit of the Beneficiary, whereby the Bank would agree, subject to the terms
and conditions set forth therein, to honor drawings by the Beneficiary in such
amount as is set forth in the outstanding Credit (such amount, as the same may
from time to time be changed subject to the terms and conditions herein, being
hereinafter referred to as the "Credit Amount"); and
WHEREAS, in connection with the issuance of the Credit, the Member on the date
hereof (the "Closing Date") delivered to the Bank (i) the written opinion of
counsel to the Member dated as of the Closing Date in the form referred to in
Section 5(a) of the Distribution Agreement dated as of November 4, 1998 (the
"Distribution Agreement"), between the Member, Credit Suisse First Boston
Corporation, PaineWebber Incorporated, and Prudential Securities Incorporated
(the "Agents") and (ii) certified copies of the resolutions of the Board of
Directors of the Member referred to in Section 301(c) of the Indenture; and
WHEREAS, the Bank is issuing the Credit on the date hereof with an initial
Credit Amount of $225,000,000.00 and an initial expiration date as of the close
of business of the Bank on November 4, 2008 (such initial expiration date as the
same may be extended in the manner provided herein is hereinafter referred to as
the "Expiration Date"); and
1
WHEREAS, the Member and the Bank have entered into an Advances, Specific
Collateral Pledge and Security Agreement dated March 30, 1998 (such agreement,
including any amendments thereto and any successor agreement that may be entered
into by the Member and the Bank in substitution for such agreement, is
hereinafter referred to as the "Advances Agreement"), whereby the Bank may
advance funds to the Member from time to time under the terms and conditions
thereof; and
WHEREAS, subject to the provisions of the Federal Home Loan Bank Act (the
"Act"), and the regulations and guidelines of the Federal Housing Finance Board
("FHFB") or any successor entity (the "Regulations"), and the Bank's Credit
Policy, the Bank is authorized to issue the Credit.
NOW, THEREFORE, the Member and the Bank agree as follows:
1. The Credit.
(a) CONFIRMATION. The Member agrees to be bound by the terms and conditions
contained herein, and in the Confirmation of Letter of Credit, in the
form attached hereto as Exhibit B (the "Confirmation"), issued with
respect to the Credit.
(b) APPLICATIONS. From time to time during the period this Agreement is
effective, the Member may submit applications under the Credit, in the
form and manner to be provided by the Bank, which applications the Bank
may deny on grounds that (i) the Member fails to meet the Bank's
guidelines for extension of credit; (ii) the purpose of the underlying
obligation supported by the Credit is contrary to the Act, Regulation
or policies applicable to advances and letters of credit established by
the FHFB, any successor entity, or the Board of Directors of the Bank;
(iii) the Bank determines that approval of such application would
expose the Bank to an unreasonable risk; or (iv) such other reasons as
the Bank may reasonably establish.
(c) AMENDMENTS TO CREDIT. From time to time during the currency of the
Credit, the Bank agrees that it will, subject to the terms and
conditions set forth herein, supplement or amend the terms of the
Credit, upon the application of the Member. The obligation of the Bank
to supplement or amend the terms of the Credit, including any increase
in the Credit Amount or any extension of the Expiration Date of the
Credit, is subject to the fulfillment, at no cost to the Bank, of the
following conditions precedent: (i) the Bank shall have received by
2:00 p.m., Atlanta time, in form and substance reasonably satisfactory
to it, one business day's prior oral and written notice from the Member
of the effective date; (ii) the representations and
2
warranties of the Member contained in Section 6 hereof shall be true
and correct as of the effective date of such change as though made upon
and as of such date; (iii) no event shall have occurred and be
continuing, or would result from the change of the Credit, which would
constitute an Event of Default under this Agreement or would constitute
such an Event of Default but for the requirement that notice be given
or time elapse or both; (iv) no change shall have occurred in any
federal, state or foreign law or regulation or in the interpretation
thereof which, in the opinion of counsel for the Bank, may make it
impermissible for the Bank to change the Credit as contemplated hereby;
and (v) the Member shall have submitted an application for the
amendment to the Credit in the form to be provided by the Bank, which
application the Bank may deny on the grounds set forth in Section
1(b)(i)-(iv) hereof. The Expiration Date of the Credit may be extended
by an amendment to the terms of the Credit pursuant to this Section
1(c), provided that the period from the date such extension is
effective through the Expiration Date shall not exceed such period as
the Act, the Regulations, and the Bank's Credit Policy may allow. The
Bank's approval of (A) an increase in the Credit Amount pursuant to
this Section 1(c) shall be evidenced by a Certificate Increasing Credit
Amount in the form attached hereto as Exhibit C, an original copy of
which will be sent by the Bank to the Beneficiary by overnight mail;
and (B) an extension in the Expiration Date pursuant to this Section
1(c) shall be evidenced by a Certificate Renewing Letter of Credit by
Amending Expiration Date to Later Date in the form attached hereto as
Exhibit D.
Upon the Bank's issuance of any amendment of the Credit, the Member
shall promptly sign and return to the Bank the Confirmation of
Amendment to Letter of Credit, in the form attached hereto as Exhibit E
(the "Amendment Confirmation"), setting forth the terms upon which the
Bank and the Member have agreed with respect to the amendment to the
Credit. Notwithstanding the foregoing, however, the failure of the
Member to deliver to the Bank, prior to the effective date of any
amendment of the Credit as specified in the related Amendment
Confirmation, written notice to the Bank specifying any disputed term
or condition set forth in the Amendment Confirmation shall constitute
the agreement and acknowledgment by the Member that the terms and
conditions of the Credit as amended are valid and are those which the
Member requested and by which the Member agreed to be bound, and the
Member shall be estopped from asserting any claim or defense with
respect to the repayment of any draw under the Credit as amended or
otherwise with respect to those terms and conditions.
(d) REDUCTION OF CREDIT AMOUNT. From time to time and at any time
3
during the currency of the Credit, the Member may request the Bank to
reduce the undrawn Credit Amount by such amount as specified in a
Certificate Regarding Reduction of Credit, in the form attached as
Exhibit F hereto (the "Reduction Certificate"), presented to the Bank
by the Beneficiary under the Credit, provided, however, that the Bank
is entitled to rely upon the Reduction Certificate as presented. The
Credit Amount shall be reduced automatically in accordance with the
related Reduction Certificate upon receipt of the same by the Bank.
2. PAYMENTS UNDER THE CREDIT. For purposes of this Agreement and the Advances
Agreement the Credit Amount plus any unreimbursed payment made by the Bank
shall constitute "Advances" by the Bank to the Member and "Advances" as
such term is used in the Advances Agreement. The Member agrees that any
such payment made by the Bank under the Credit shall be reimbursed by the
Member unconditionally and immediately upon demand by the Bank. Upon the
Bank's receipt of a certificate demanding payment under the Credit, the
Bank will make an oral or written demand to the Member for reimbursement.
Any oral demands by the Bank for reimbursement shall be confirmed
concurrently in writing. For purposes of this Section 2, an Advance shall
be deemed to have been reimbursed immediately if payment is received by
the Bank (or credited to the Member's account) not later than 2:00 p.m.,
Atlanta time, on the next Business Day after an oral or written demand for
reimbursement has been made by the Bank. Any failure by the Member to
provide such immediate reimbursement shall constitute a default under this
Agreement. The Member agrees to pay the Bank interest on such amounts in
default at the rate in effect and charged by the Bank from time to time on
overdrafts on demand deposit accounts of its members, but in no event more
than any applicable limit set by Regulations. Nothing herein shall prevent
the Member from applying for an Advance under any other advance plan of
the Bank for the funding of such reimbursement. The Member agrees to pay
any reasonable costs of collection including reasonable attorneys' fees,
if such reimbursements are collected by or through an attorney at law. The
Member hereby authorizes the Bank to debit the Member's demand account(s)
with the Bank for any and all reimbursement due the Bank and for all fees,
charges and other amounts payable in connection with the Credit hereunder.
In the event that the balance in such demand account(s) is insufficient to
pay such amounts, the Bank may without prior notice to the Member apply
any other deposits, credits, monies or other property of the Member then
in the possession of the Bank (and not held as bailee for a third party)
to the payment of such due and payable amounts. The Bank will promptly
notify the Member following the taking of any such action.
Upon any payment by the Bank of a drawing under the Credit, the Credit
Amount shall be reduced as provided in the Credit, and by the close of
4
business on the fifth Business Day after the date of such drawing the
Credit Amount shall be reinstated by the amount of such drawing provided
that the Beneficiary has received from the Bank by telecopy or otherwise, a
Certificate Reinstating the Credit Amount substantially in the form of
Exhibit G hereto with respect to such drawing. The Bank will reinstate the
Credit Amount, provided that each of the following conditions shall be
satisfied by 12:00 noon, Atlanta time, on the fifth Business Day following
the date of demand by the Beneficiary under the Credit (i.e., the
submission by the Beneficiary of a conforming drawing certificate under the
Credit): (a) the Bank shall have been reimbursed in full by the Member for
the amount of any payment made, or to be made as a result of such drawing,
by the Bank under the Credit, together with interest thereon as provided
herein; (b) the Bank shall have received from the Member a written request
for such reinstatement; and (c) the Bank shall not have determined that
there has occurred and is continuing an "Event of Default" or any event
which with the giving of notice or the passage of time or both would
constitute such an Event of Default.
3. COLLATERAL AND SECURITY INTEREST. In consideration of the issuance of the
Credit and to secure all Advances and all of the other obligations of the
Member hereunder, the Member hereby assigns, transfers and pledges to the
Bank and grants to the Bank a security interest in all collateral now or
hereafter pledged to the Bank under the Advances Agreement and applicable
Bank Credit and Collateral Policies ("Collateral"). The terms and
conditions in the Advances Agreement applicable to security and collateral
shall apply to Advances to the same extent and in the same manner in which
they apply to advances made under the Advances Agreement. Without limiting
the generality of the foregoing, the collateral requirements otherwise
applicable to Advances made by the Bank under the Advances Agreement and
applicable Bank Credit and Collateral Policies shall apply to Advances
hereunder, and the amount of Collateral that the Member is required to
pledge to the Bank shall be based on the amount of outstanding Advances to
the Member under the Advances Agreement plus Advances hereunder.
4. ACCEPTANCE AND HONOR OF CREDIT. The Bank agrees to: (a) accept and pay
drafts or other documents requesting payment under the Credit drawn in
conformity with this Credit; (b) honor drafts or other documents
requesting payment drawn under the Credit for less than or equal to the
Credit Amount; (c) accept or pay, as complying with the terms of the
Credit, any drafts or other documents requesting payments signed or issued
by any trustee in bankruptcy, debtor-in-possession, assignee for benefit
of creditors, liquidator, receiver, conservator, attorney-in-fact or other
representative of the Beneficiary or of any successor or assign approved
in writing by the Bank; (d) accept or pay any drafts or other
5
documents requesting payment dated and presented on or before the
Expiration Date of the Credit, regardless of when drawn and when or whether
negotiated; and (e) accept documents of any character which comply with the
terms of the Credit.
5. FEES AND OTHER CHARGES. The Member agrees to pay the Bank, on demand, any
and all reasonable charges and expenses (including, but not limited to,
attorneys' and accountants' fees and expenses) paid or incurred by the
Bank in connection with the preparation, negotiation and enforcement of
this Agreement or any amendment hereto. In addition, the Member agrees to
pay to the Bank the applicable fees for the establishment and maintenance
of the Credit issued hereunder (plus any applicable fees for any increase,
extension, amendment, renewal or partial renewal thereof) as shall be
contemplated by the Bank's Credit Policy and by that certain letter
agreement of even date herewith between the Bank and the Member. The
Member agrees to pay or reimburse the Bank, upon its request, for all
reasonable third party expenses incurred by the Bank in the administration
of the Credit.
6. MEMBER'S WARRANTIES, REPRESENTATIONS AND COVENANTS. The Member represents,
warrants and covenants to the Bank that the following are and shall remain
true, complete and correct as of the date hereof and for so long as the
Credit shall be outstanding: (a) this Agreement has been duly and validly
executed and delivered by the Member and its execution, delivery and
performance have been authorized by all necessary corporate action on
behalf of the Member; (b) neither this Agreement nor the Credit nor any
transaction to which this Agreement or the Credit relates violates any law
or regulation applicable to the Member, including, without limitation, any
applicable federal or state securities laws and regulations; (c) the
Member has duly entered into the Advances Agreement and the same is
currently in full force and effect; and (d) the Member will maintain one
or more demand accounts with the Bank at all times during which any Credit
issued hereunder remains outstanding.
In addition, the Member represents and warrants to the Bank as of the date
hereof and as of each subsequent date contemplated in Section 1of the
Distribution Agreement to the same effect as set forth in and contemplated
by Section1 of the Distribution Agreement, and the Member further agrees
that each confirmation of the parties' agreement to an amendment to the
Credit as evidenced by the Member's signing and returning to the Bank an
Amendment Confirmation in accordance with Section 1 hereof shall be deemed
(a) an affirmation by the Member that its representations, warranties and
covenants as set forth in this Section 6 are true and correct at the time
of return of the related Amendment Confirmation to the Bank, as though made
at and as of each such
6
time, (b) an undertaking that such representations and warranties will be
true and correct at the time such amendment to the Credit becomes effective
and (c) an affirmation by the Member that it is in compliance with its
covenants as set forth in this Section 6.
The Member covenants to the Bank that (a) it will furnish to the Bank
copies of the financial statements and other documents as contemplated by
Section 5 of the Distribution Agreement at such time as the same are
furnished to the Agents thereunder, (b) it will immediately inform the Bank
as to any matters notice of which is given to the Agents pursuant to
Section 5 of the Distribution Agreement, and (c) it will furnish to the
Bank, a reasonable time prior to the use thereof, any Offering Circular (as
defined in the Distribution Agreement) or other material which the Member
proposes to use in connection with the offer or sale of the Senior Notes
which refers to the Bank or the Credit and that it will not use any
Offering Circular (as defined in the Distribution Agreement) or other
material to which the Bank has objected.
7. LIABILITIES AND RESPONSIBILITIES OF THE BANK. It is agreed that the Bank
shall not be responsible for, and no obligation of the Bank under the
Credit shall be affected by or in respect of: (a) the use which may be
made of the Credit or any act or omission of any Beneficiary or assignee
of the Credit; (b) the validity, authenticity, sufficiency, completeness,
genuineness or collectibility of any drafts, instruments, notices of
default, or other documents, including endorsements and signatures
thereon; (c) any breach of contract (other than in respect of the Senior
Notes), including, without limitation, the Distribution Agreement between
the Member and any other party other than the Bank; (d) compliance with or
circumstances resulting from the existence or exercise of applicable laws,
regulations, customs, controls or restrictions by any government or by any
group asserting or exercising de facto or de jure governmental powers; (e)
any failure of drafts or other evidences of withdrawal to bear reference
or adequate reference to the Credit, or failure of any person to
surrender, take up or forward the Credit, or to note thereon any
withdrawal thereunder, each of which requirements the Bank may waive even
if included in the Credit; (f) any errors, omissions, interruptions or
delays in transmission or delivery of any messages, however sent and
whether plain or in code or cipher, or errors in translation or in
interpretation of technical or other terms, absent the Bank's gross
negligence or bad faith; (g) any event, fact or condition beyond the
control of the Bank; and (h) without limiting the foregoing, any act or
omission of the Bank or any confirming or advising bank or any of the
Bank's correspondents, agents or subagents done or omitted in good faith
(excepting, however, any such act or omission that contravenes the Bank's
obligations under the governing laws and
7
authorities referred to in Section 11 of this Agreement). The Bank is
expressly authorized and directed to honor any draft or other request for
payment which is made under and in compliance with the Credit without
regard to, and without any duty to inquire into, the existence of any
disputes or controversies between the Member, the Beneficiary or any other
person or firm, or their respective rights, duties or liabilities or
whether any fact or event referred to in any notice of default or other
document presented under the Credit is true and correct. Except for the
obligation of the Bank set forth in the last sentence of Section 2 hereof,
the sole obligation of the Bank to the Member in connection with drawings
under the Credit is limited to honoring requests for payment made under and
in compliance with the Credit, and the Bank shall have no liability to the
Member in connection with any such drawing even though the Bank may have
prepared the Credit or any notice of default or other document required to
be presented thereunder and even though the Bank may otherwise be aware of
facts concerning the transaction which gives rise to the drawing under the
Credit.
8. EVENTS OF DEFAULT. The following occurrences shall be Events of Default:
(a) any Event of Default as defined in the Advances Agreement; (b) the
failure of the Member to pay any amount due hereunder; (c) the breach by
the Member of, or the failure by the Member to comply in all respects
with, any covenant, agreement, term or condition under or in connection
with this Agreement if the Member shall not have cured such breach or
failure within 10 days after notice thereof from the Bank; (d) any failure
at any time of any representation or warranty or information, furnished by
the Member to the Bank in any context, to be and remain true, correct and
complete in all material respects; or (e) any failure by the Member to
furnish the Bank such information, and such access to all its books and
records, and copies thereof, as the Bank may reasonably require.
9. REMEDIES Upon the occurrence of an Event of Default, without limiting any
other rights and remedies which may be available at law or in equity, the
Bank shall have all rights and remedies as provided for in respect of a
default under the Advances Agreement.
10. ISSUANCE OF FURTHER NOTES. Upon the occurrence of an Event of Default, the
Bank may, in its sole discretion, without limiting any other rights and
remedies which may be available at law or in equity, issue written
instructions (or telephonic instructions, confirmed in writing in
accordance with Section 107 of the Indenture promptly thereafter) to the
Beneficiary not to issue or deliver Senior Notes, which instructions may
be specified with respect to a particular issue of Senior Notes or may be
general and applicable to all Senior Notes requested to be issued or
8
delivered after receipt of such instructions, until revoked or superseded
by further instructions from the Bank.
11. GOVERNING LAW; CUMULATIVE REMEDIES. In addition to the terms and
conditions specifically set forth herein and in any Confirmation between
the Bank and the Member, this Agreement and the Credit shall be governed
by the Federal Home Loan Bank Act, Rules and Regulations of the FHFB,
policies, guidelines and directives of the FHFB, and the statutory and
common law of the United States and, to the extent federal law
incorporates or defers to state law, the laws of the State of Georgia
(without giving effect to choice of law principles included therein).
Notwithstanding the foregoing, Article 9 of the Uniform Commercial Code as
in effect in the State of Georgia shall be deemed applicable to this
Agreement and to any Credit hereunder. It is further agreed that this
Agreement shall be supplemented by the provisions (to the extent that such
provisions are consistent with the provisions of this Agreement) of the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 and, to the extent
not inconsistent therewith, by the provisions of Article 5 of the Uniform
Commercial Code as in effect in the State of Georgia. All rights and
remedies of the Bank hereunder are cumulative of each other and of every
other right or remedy which the Bank may otherwise have at law or in
equity or under any contract or other writing for the enforcement of the
security interest herein or the collection of any amount due hereunder.
12. WAIVER; AMENDMENT; SEVERABILITY. No delay or failure on the part of the
Bank in exercising any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or privilege preclude other or further exercise thereof or the exercise of
any other right, power or privilege or be construed to be a waiver of any
Event of Default. No waiver by the Bank of any Event of Default shall be
effective unless in writing and signed by an authorized officer of the
Bank, and no such waiver shall be deemed to be a waiver of a subsequent
Event of Default or be deemed to be a continuing waiver. No course of
dealing between the Member and the Bank or its agents or employees shall
be effective to change, modify or discharge any provision of this
Agreement or to constitute a waiver of any default. If any provision of
this Agreement is held invalid or unenforceable to any extent or in any
application, the remainder of this Agreement, or the application of such
provision to different persons or circumstances or in different
jurisdictions, shall not be affected thereby.
13. INDEMNITY. Member agrees to defend, indemnify and hold harmless the Bank
and the Bank's correspondents, agents and subagents, and its directors,
officers and employees, from and against any and all demands,
9
actions, damages, claims, losses, penalties, liabilities and expenses
(including reasonable attorneys' fees and expenses whether or not suit is
instituted), not involving any Indemnitee's (as defined below) bad faith or
any willful breach of any Indemnitee's obligations under this Agreement or
the Credit, or involving any violation by any Indemnitee of obligations
under the governing laws and authorities referred to in Section 11 of this
Agreement, resulting from or incurred, suffered or paid by any of them in
connection with this Agreement, the Credit, or any breach or failure in
respect of the Member of any representation, warranty, covenant, agreement,
term or condition set forth in or referred to in this Agreement.
The Member further agrees to assume liability for and to indemnify,
protect, save and hold harmless the Bank, each individual, corporation,
partnership, trust, association or other entity ("Person") controlling the
Bank, any affiliate of any such Person or the Bank and their respective
directors, officers, incorporators, shareholders, partners, servants,
trustees, employees and agents (the "Indemnitees") from and against any and
all losses, liabilities, claims, damages, penalties, causes of action,
suits, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses whether or not suit is instituted) or
judgments of whatever kind and nature, imposed upon, incurred by or
asserted against the Indemnitees, which are (x) based upon or arising under
the securities laws of the United States of America or of any state or any
regulation, rule, or interpretation thereunder or thereof to the extent
arising from the transactions contemplated hereby and by the Distribution
Agreement, (y) based upon the inaccuracy of any representation made or
reaffirmed by the Member, or (z) based upon any untrue statement or alleged
untrue statement of a material fact in the Offering Circular (as defined in
the Distribution Agreement), or the omission or alleged omission therefrom
of a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If any
action, suit or proceeding arising from any of the foregoing is brought
against any of the Indemnitees, the Member will, if requested in writing
within a reasonable time to do so, and at its own expense, resist and
defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel designated by the Member (which counsel shall be
satisfactory to such Indemnitees) and regardless of whether the Member is a
party to the same, pay all reasonable costs and expenses of such defense
(including, without limitation, reasonable attorneys' fees and expenses).
It is agreed, however, that the obligations of the Member under this
Section 13 shall not extend to any liability of any Indemnitee arising out
of any untrue statement by any Indemnitee (whether written or oral)
10
of a material fact in connection with the issue and sale of the Senior
Notes, or any omission by any Indemnitee to state a material fact necessary
to make any statement by any Indemnitee, in light of the circumstances
under which it was made, not misleading, in connection with the issue and
sale of the Senior Notes, except to the extent such untrue statement or
omission was made by such Indemnitee on the basis of information provided
by or omitted to be provided by the Member. The provisions of this Section
13 shall not be deemed to constitute a waiver on the part of the Member of
any of its rights at law or in equity against any Indemnitee in any
circumstance contemplated by the preceding sentence hereof.
The foregoing indemnity will also extend to any supplemental material
subsequently furnished to the Agents by the Member and distributed to
purchasers or prospective purchasers during the term of the Distribution
Agreement.
In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Section 13 is for any reason
held unavailable (otherwise than in accordance with the terms of this
Section 13), the Member and any Indemnitees sought to be charged with any
liability shall contribute to the aggregate costs of satisfying such
liability in the proportion of their respective economic interests. For
purposes of this Section 13, the "economic interests" of the Member shall
be equal to the aggregate proceeds of the Senior Notes issued in connection
with the Distribution Agreement received by the Member and the "economic
interests" of any Indemnitee shall be equal to the aggregate commissions
and fees earned by the Bank as a result of the issuance of the Credit.
The obligations of the Member under this Section 13 shall survive any
termination of the Indenture, in whole or in part, or of the Credit or this
Agreement, in whole or in part.
14. OTHER LETTER OF CREDIT REIMBURSEMENT AGREEMENTS. In the event that at any
time there shall be in effect any Letter of Credit Reimbursement Agreement
between the Member and the Bank other than this Agreement, the terms and
provisions of this Agreement shall be the sole terms and provisions
applicable to the Credit and the respective rights and obligations of the
parties hereunder.
15. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument,
and any of the parties hereto may execute this Agreement by signing any
such counterpart.
11
IN WITNESS WHEREOF, the Member and the Bank have caused this Agreement to be
signed in their names by their duly authorized officers as of the date first
above mentioned.
FEDERAL HOME LOAN BANK BANKUNITED, FSB
OF ATLANTA
By: By:
------------------------------ -------------------------------
Vice President and Director of Title:
Credit Services ----------------------------
By: By:
------------------------------ -------------------------------
Vice President and Director of Title:
Collateral Services ----------------------------
NOTE: This form must be signed on behalf of the Member by two authorized
signers as identified on the Member's Credit and Collateral Signature
Card.
12
