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EXHIBIT 3.1
DECLARATION OF TRUST
OF
BANK UNITED LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST
THIS DECLARATION OF TRUST is made as of November 2, 2000, (this
"Declaration"), by and among Bank United Corp., a Delaware corporation, as
sponsor (the "Sponsor"), First Union Trust Company, a Delaware banking
corporation (the "Delaware Trustee"). The Sponsor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as Bank United
Litigation Contingent Payment Rights Trust (the "Trust"), in which name the
Delaware Trustee or the Sponsor, to the extent provided herein, may conduct the
business of the Trust, make and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over
to the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 DEL. C. ss.ss. 3801, et. seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The Delaware Trustee
is hereby authorized and directed on even date herewith to execute and file a
certificate of trust with the Office of the Secretary of State of the State of
Delaware in the form attached hereto as Exhibit A.
3. The Sponsor, the Delaware Trustee and certain other trustees
will enter into an Amended and Restated Declaration of Trust satisfactory to
each such party to provide for the contemplated operation of the Trust created
hereby and the issuance of the Contingent Payment Right Certificates to be
referred to therein. Prior to the execution and delivery of such Amended and
Restated Declaration of Trust, the Delaware Trustee shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Delaware Trustee
may take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion, (i)
to file with the Securities and Exchange Commission (the "Commission") and to
execute, (a) a Registration Statement on behalf of the Trust (including
pre-effective or post-effective amendments to such Registration Statement)
relating to the registration under the Securities Act of 1993, as amended (the
"1993 Act"), of the Contingent Payment Right Certificates of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Contingent Payment Right Certificates required to be filed under the 1933 Act,
and (c) if required, a Registration Statement on appropriate form (including all
pre-effective and post-effective amendments thereto) relating
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to the registration of the Contingent Payment Right Certificates of the Trust
under the Securities Exchange Act of 1934, as amended; (ii) to file with any
desirable exchange (collectively, the "Exchanges") and execute on behalf of the
Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Contingent Payment Right Certificates to be listed on the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Contingent Payment Right Certificates under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of
the Trust, may deem necessary or desirable; (iv) to execute, deliver and perform
a depository agreement with the initial clearing agency, relating to the
Contingent Payment Right Certificates, and (v) to apply for and obtain a tax
identification number for the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, PORTAL or state
securities or Blue Sky laws to be executed on behalf of the Trust by the
Trustees, the Trustees, in their capacities as trustees of the Trust are hereby
authorized and directed to join in such filing and to execute on behalf of the
Trust any and all of the foregoing, it being understood that the Delaware
Trustee in its capacity as the Delaware Trustee of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, PORTAL
or state securities or Blue Sky laws. In connection with all of the foregoing,
the Sponsor hereby constitutes and appoints each of Jonathon K. Heffron and
Randolph C. Henson, as its true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution for the Sponsor or in the Sponsor's
name, place and stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and post-effective amendments) to any Registration
Statement referred to herein and to file the same, with all exhibits thereto,
and any other documents in connection therewith, with the Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Sponsor might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. The number of trustees of the Trust initially shall be one (1)
and thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Sponsor which
may increase or decrease the number of trustees of the Trust; provided, however,
that the number of trustees shall in no event be less than one (1); provided,
further, that to the extent required by the Business Trust Act, one trustee of
the Trust shall either be a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place of
business in the State of Delaware. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause the Delaware Trustee at any time.
The Delaware Trustee of the Trust may resign upon thirty (30) days' prior notice
to the Sponsor. Following the Delaware Trustee's resignation or removal, the
Delaware Trustee shall have no further duties hereunder.
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6. Compensation for acting as Delaware Trustee shall be set forth
in one or more separate fee agreement between the Delaware Trustee and the
Sponsor. Notwithstanding anything herein to the contrary, the Delaware Trustee
shall have no duties hereunder except to (i) execute and file a certificate of
trust with the Office of the Secretary of State of the State of Delaware, (ii)
fulfill the requirements of Section 3807 of the Business Trust Act, and (iii)
take such other action as directed in writing by the Sponsor.
7. The Sponsor agrees, to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) the Delaware Trustee, (ii)
any affiliate of the Delaware Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of the Delaware Trustee and any affiliate of
the Delaware Trustee, and (iv) any employee or agent of the Trust or its
affiliates (each an "Indemnified Person") from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of reckless or
willful misconduct with respect to such acts or omissions.
8. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware, PROVIDED, HOWEVER, THAT
THERE SHALL NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS DECLARATION ANY
PROVISION OF THE LAWS (COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING
TO TRUSTS OTHER THAN THE BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR
REFERENCED IN THIS DECLARATION. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE TRUST.
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9. Each party hereto (i) irrevocably submits to the non-exclusive
jurisdiction and venue of any Delaware State court or Federal court sitting in
Wilmington, Delaware in any action arising out of this Declaration, and (ii)
consents to the service of process by mail. Nothing herein shall affect the
right of any party to serve legal process in any manner permitted by law or
affect its right to bring any action in any other court.
10. This Declaration may be executed in several counterparts,
each of which will be deemed an original, and the counterparts will together
constitute one and the same agreement, notwithstanding that all the parties are
not signatory to the original or the same counterpart.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration
to be duly executed as of the day and year first above written.
FIRST UNION TRUST COMPANY,
not in its individual capacity but solely
as the Delaware Trustee of the Trust
By: /s/ Stephen Kaba
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Name: Stephen Kaba
Title: Vice President
THIS IS A SIGNATURE PAGE TO THE DECLARATION OF TRUST
OF BANK UNITED LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
DATED AS OF NOVEMBER 2, 2000.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration
to be duly executed as of the day and year first above written.
Bank United Corp.,
as Sponsor
By: /s/ Barry C. Burkholder
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Name: Barry C. Burkholder
Title: President and Chief Executive
Officer
THIS IS A SIGNATURE PAGE TO THE DECLARATION OF TRUST
OF BANK UNITED LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
DATED AS OF AUGUST 2, 2000.
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