AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 27, 1999
REGISTRATION NO. 333-75937
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BANK UNITED CORP.
BANK UNITED CAPITAL TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-3528556
DELAWARE TO BE APPLIED FOR
STATE OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
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3200 SOUTHWEST FREEWAY
SUITE 2600
HOUSTON, TX 77027
(713) 543-6500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JONATHON K. HEFFRON, ESQ.
EXECUTIVE VICE PRESIDENT, CHIEF OPERATING OFFICER AND GENERAL COUNSEL
3200 SOUTHWEST FREEWAY
SUITE 2600
HOUSTON, TX 77027
(713) 543-6500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S AGENT FOR SERVICE)
------------------------
COPIES TO:
CRAIG M. WASSERMAN, ESQ. LEE MEYERSON, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ SIMPSON THACHER & BARTLETT
51 WEST 52ND STREET 425 LEXINGTON AVENUE
NEW YORK, NY 10019 NEW YORK, NEW YORK 10017
(212) 403-1000 (212) 455-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement as determined by
market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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WE HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL WE SHALL FILE A FURTHER AMENDMENT
THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER
BECOME EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8(A) OF THE
SECURITIES ACT, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
The information in this prospectus is not complete, and it may change. This
prospectus is included in a registration statement that we filed with the
Securities and Exchange Commission. Neither we nor the selling stockholders can
sell these securities until that registration statement becomes effective. This
prospectus is not an offer to sell
these securities or the solicitation of an offer to buy these securities in any
state where an offer to sell or the solicitation of an offer to buy is not
permitted.
SUBJECT TO COMPLETION, DATED MAY 27, 1999
PROSPECTUS
BANK
[LOGO] UNITED CORP.
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BANK UNITED CAPITAL TRUST
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$680,000,000
PREFERRED STOCK
CLASS A COMMON STOCK
JUNIOR SUBORDINATED DEBT SECURITIES
GUARANTEE
of Bank United Corp.
TRUST PREFERRED SECURITIES
of Bank United Capital Trust
INVESTING IN THE OFFERED SECURITIES INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 1.
Our Class A common stock is traded on the NASDAQ under the symbol "BNKU". On
May 26, 1999, the last reported sale price of our Class A common stock on the
NASDAQ was $41.4375 per share. Prospective purchasers of the Class A common
stock are urged to obtain current information as to market prices of the Class A
common stock.
WE WILL PROVIDE SPECIFIC TERMS OF THESE SECURITIES IN SUPPLEMENTS TO
THIS PROSPECTUS. YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENTS
CAREFULLY BEFORE YOU INVEST.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
THESE SECURITIES ARE NOT OBLIGATIONS OF A BANK OR SAVINGS ASSOCIATION AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
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MAY , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Risk Factors............................ 1
Use of Proceeds......................... 4
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges
and Preferred Dividends............... 4
Bank United Corp........................ 5
Bank United Capital Trust............... 6
Description of Offered Securities....... 8
Relationship Among the Trust Preferred
Securities, the Trust Preferred
Securities
Guarantee and the Junior Subordinated
Notes Held by Bank United Capital
Trust................................. 33
Selling Stockholders.................... 34
Plan of Distribution.................... 35
Legal Matters........................... 36
Experts................................. 36
Forward-Looking Information............. 36
About This Prospectus................... 37
Where You Can Find More Information..... 38
</TABLE>
<PAGE>
RISK FACTORS
An investment in any of the securities offered by this prospectus involves
certain risks. Before you decide to purchase any of these securities, you should
carefully consider the following risk factors, in addition to the other
information included in this prospectus and the applicable prospectus
supplement, before making an investment decision.
HOLDERS OF SHARES OF OUR CLASS A COMMON STOCK COULD EXPERIENCE DILUTION.
Some of our stockholders hold shares of Class B common stock, which have no
voting rights. They may, however, elect to convert their shares to Class A
common stock. Class B common stock is also converted to Class A common stock
automatically when a holder of Class B common stock transfers such shares to a
person who is not an affiliate of the transferring holder. There are 3,241,320
shares of Class B common stock outstanding.
We issued 31,595,596 shares in our IPO in August, 1996. Since that time, we
have repurchased 34,200 shares and issued 142,250 shares, so that we currently
have 31,703,646 shares of common stock outstanding. Of the 31,595,596 shares
issued in our IPO, 12,075,000 were registered under the Securities Act of 1933
and sold to the public in the IPO and 19,520,596 were subject to contractual
restrictions on sale which expired or expire at various times. We agreed to use
our best efforts to register these 19,520,596 shares under the Securities Act
and to maintain the effectiveness of such registration for a specified period.
The registration statement of which this prospectus forms a part covers
9,171,815 of these 19,520,596 shares. The contractual restrictions on the sale
of 8,205,778 of these 19,520,596 shares will expire on August 8, 1999, unless
our Board of Directors determines as of an earlier date that a sale or transfer
of these shares will not have a material adverse effect on our tax position.
OUR OBLIGATIONS UNDER THE TRUST PREFERRED SECURITIES GUARANTEE AND THE JUNIOR
SUBORDINATED DEBT SECURITIES ARE SUBORDINATED.
Our obligations under the trust preferred securities guarantee and under
the junior subordinated debt securities will rank junior in priority of payment
to all of our senior indebtedness. This means that we cannot make any payments
on the trust preferred securities guarantee or the junior subordinated debt
securities if we default on a payment of senior indebtedness and do not cure the
default within the applicable grace period, or if the senior indebtedness
becomes immediately due because of a default and has not yet been paid in full.
In addition, our obligations under the trust preferred securities guarantee and
under the junior subordinated debt securities will rank junior to all existing
and future liabilities of our subsidiaries.
We cannot make any payments on the trust preferred securities guarantee if
we default on a payment on any of our other debt. In addition, in the event of
our bankruptcy, liquidation or dissolution, our assets would be available to pay
obligations under the trust preferred securities guarantee only after we have
made all payments on our other liabilities.
Neither the trust preferred securities of Bank United Capital Trust, our
junior subordinated debt securities nor our trust preferred securities guarantee
limit our ability or that of our subsidiaries to incur additional indebtedness,
including indebtedness that ranks senior in priority of payment to the junior
subordinated debt securities and the trust preferred securities guarantee.
BANK UNITED CAPITAL TRUST'S ABILITY TO MAKE PAYMENTS ON ITS TRUST PREFERRED
SECURITIES WILL DEPEND ENTIRELY ON OUR PAYMENTS ON OUR JUNIOR SUBORDINATED DEBT
SECURITIES.
The only assets of Bank United Capital Trust will be its investment in our
junior subordinated debt securities. Accordingly, the ability of Bank United
Capital Trust to pay scheduled distributions on its trust preferred securities,
as well as the redemption price and the liquidation amount of the trust
preferred securities, is solely dependent upon us paying, when due, the related
payments we are obligated to pay on the junior subordinated debt securities.
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<PAGE>
OUR OBLIGATIONS UNDER THE TRUST PREFERRED SECURITIES GUARANTEE ARE LIMITED.
The trust preferred securities guarantee only guarantees that we will make
distribution, redemption and liquidation payments on the trust preferred
securities of Bank United Capital Trust if it has the funds to do so itself but
does not. If we fail to pay in full principal or interest when due on our junior
subordinated debt securities, Bank United Capital Trust will not have sufficient
funds to make distribution, redemption or liquidation payments on the trust
preferred securities. In those circumstances, you also will not be able to rely
upon the trust preferred securities guarantee for payment of these amounts.
Instead, you:
o may directly sue us or seek other remedies to collect your
proportionate share of payments owed; or
o rely on the Property Trustee to enforce Bank United Capital Trust's
rights under the junior subordinated debt securities.
OUR DEFERRAL OF DISTRIBUTIONS ON THE JUNIOR SUBORDINATED DEBT SECURITIES WOULD
NOT RELIEVE YOU OF LIABILITY FOR TAXES AND COULD AFFECT THE TRADING PRICE OF THE
TRUST PREFERRED SECURITIES.
So long as no event of default under the junior subordinated debt
securities has occurred and is continuing, we can, on one or more occasions,
defer interest payments on the junior subordinated debt securities for the
number of consecutive periods specified in the applicable prospectus supplement.
If we defer interest payments on the junior subordinated debt securities, Bank
United Capital Trust will defer distributions on the trust preferred securities
during such deferral period. However, distributions will still accumulate and
such deferred distributions will themselves accrue interest to the extent
permitted by law.
If we defer payments of interest on the junior subordinated debt securities
held by Bank United Capital Trust, you will be required to recognize interest
income for U.S. federal income tax purposes based on your proportionate share of
the interest on those junior subordinated debt securities before you receive any
cash relating to such interest. In addition, you will not receive such cash from
the trust if you sell the trust preferred securities before the end of any
deferral period or before the record date relating to distributions that are
paid.
We have no current intention of deferring interest payments on the junior
subordinated debt securities and believe that deferral is a remote possibility.
However, if we exercise our right to defer in the future, the trust preferred
securities may trade at a price that does not fully reflect the value of accrued
but unpaid interest on the junior subordinated debt securities. If you sell the
trust preferred securities during an interest deferral period, you may not
receive the same return on your investment as someone who continues to hold the
trust preferred securities.
Even if we do not exercise our right to defer interest payments on the
junior subordinated debt securities, our right to do so may make the market
price for the trust preferred securities more volatile than that of other
securities without this feature.
The prospectus supplement with respect to the trust preferred securities
will describe relevant U.S. federal income tax considerations applicable to the
purchase, holding and disposition of the trust preferred securities.
WE MAY REDEEM YOUR TRUST PREFERRED SECURITIES AT ANY TIME IF SPECIFIED CHANGES
IN TAX, INVESTMENT COMPANY OR BANK REGULATORY LAW OCCUR.
If any of the changes in tax, investment company or bank regulatory law
described in this prospectus occur and are continuing, and certain other
conditions are satisfied, we will have the right to redeem the junior
subordinated debt securities within 90 days of the event whether or not we could
otherwise have redeemed the junior subordinated debt securities at that time.
Any redemption will cause a mandatory redemption of trust preferred securities
having a total liquidation amount equal to the total principal amount of junior
subordinated debt securities to be redeemed. Prior to any such
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<PAGE>
redemption, we will obtain any required regulatory approvals. See "Description
of the Offered Securities -- Trust Preferred Securities -- Distribution of the
Junior Subordinated Debt Securities" and "-- Special Event Redemption."
HOLDERS OF THE TRUST PREFERRED SECURITIES WILL HAVE LIMITED VOTING RIGHTS.
You will have very limited voting rights if you own or hold trust preferred
securities. Among other things, we will have the power to elect or remove any of
the trustees of Bank United Capital Trust unless an event of default under the
junior subordinated debt securities has occurred and is continuing. See "Trust
Preferred Securities -- Voting Rights; Amendment of Declaration."
WE MAY TERMINATE BANK UNITED CAPITAL TRUST AT ANY TIME.
Subject to obtaining any required regulatory approval, we have the right to
terminate Bank United Capital Trust at any time. If we decide to exercise our
right to terminate Bank United Capital Trust, Bank United Capital Trust will
redeem its trust securities by distributing the junior subordinated debt
securities to holders of the trust securities on a proportionate basis.
Under current U.S. federal income tax law, a distribution of junior
subordinated debt securities to you upon the dissolution of Bank United Capital
Trust should not be a taxable event to you. However, if Bank United Capital
Trust is characterized for U.S. federal income tax purposes as an association
taxable as a corporation at the time it is dissolved or if there is a change in
law, the distribution of junior subordinated debt securities to you may be a
taxable event to you.
We have no current intention of terminating Bank United Capital Trust and
distributing junior subordinated debt securities to the holders of its trust
preferred securities. We anticipate that we would consider exercising this right
in the event that expenses associated with maintaining Bank United Capital Trust
were substantially greater than currently expected, such as if certain changes
in tax, investment company or bank regulatory law occurred. We cannot predict
the other circumstances under which we would exercise this right.
THE TRUST PREFERRED SECURITIES ARE A NEW SECURITY WITH NO PRIOR MARKET.
Prior to this offering there has been no public market for the trust
preferred securities, and we cannot assure you that such a market will develop.
The trust preferred securities may not be listed on any securities exchange. The
underwriters may make a market in the trust preferred securities after the
consummation of this offering, as permitted by applicable laws and regulations;
however, the underwriters are not obligated to do so, and may discontinue any
such market making activities at any time without notice. If a trading market
for the trust preferred securities does develop, the trust preferred securities
may trade at a discount from their initial offering price depending on
prevailing interest rates, the market for similar securities, our performance
and other factors.
THERE MAY BE NO TRADING MARKET FOR THE JUNIOR SUBORDINATED DEBT SECURITIES.
Although we will use our best efforts to list the junior subordinated debt
securities on the exchange, if any, on which the trust preferred securities are
then listed if they are distributed, we cannot assure you that the junior
subordinated debt securities will be approved for listing on such exchange or
that a trading market will exist for those securities.
3
<PAGE>
USE OF PROCEEDS
Unless we have indicated otherwise in the applicable prospectus supplement,
we expect to use the net proceeds we receive from any offering of these
securities for our general corporate purposes. Bank United Capital Trust will
use the net proceeds from the sale of its trust preferred securities to purchase
junior subordinated debt securities from us.
Neither we nor Bank United Capital Trust will receive any of the proceeds
from any sale of Class A common stock by any of the selling stockholders. See
"Selling Stockholders."
RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
Our ratios of earnings to fixed charges, which are computed on the basis of
the total enterprise (as defined by the Securities and Exchange Commission) by
dividing earnings before fixed charges and income taxes by fixed charges, are
shown below for the periods indicated. Also shown below are our ratios of
earnings to combined fixed charges and preferred stock dividends, which are
computed on the basis of the total enterprise by dividing earnings before fixed
charges and income taxes by fixed charges and preferred stock dividend
requirements, for the periods indicated. Fixed charges consist principally of
interest expense on all long- and short-term borrowings, excluding or including
interest on deposits as indicated.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
MARCH 31, YEAR ENDED SEPTEMBER 30,
-------------------- -----------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS TO FIXED CHARGES:
Excluding interest expense on
deposits......................... 1.56 1.41 1.50 1.54 1.21 1.30 1.72
Including interest expense on
deposits......................... 1.31 1.22 1.26 1.29 1.11 1.16 1.26
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED DIVIDENDS:
Excluding interest expense on
deposits......................... 1.44 1.30 1.37 1.40 1.10 1.23 1.54
Including interest expense on
deposits......................... 1.25 1.17 1.20 1.22 1.06 1.13 1.21
</TABLE>
4
<PAGE>
BANK UNITED CORP.
We are a broad-based financial services provider to consumers and
businesses in Texas and selected regional markets throughout the United States.
At March 31, 1999, we operated a 94-branch community banking network serving
nearly 265,000 households, as well as 19 commercial banking offices in 16 states
across the country. As of March 31, 1999, we were the largest publicly traded
financial institution headquartered in Texas, with $14.9 billion in assets, $6.6
billion in deposits, and $723.0 million in stockholders' equity. Our address is
3200 Southwest Freeway, Suite 2600, Houston, Texas 77027 and our telephone
number is (713) 543-6500.
We were incorporated in Delaware on December 19, 1989 as USAT Holdings Inc.
and became the holding company for Bank United (the "Bank") upon its formation
on December 30, 1988. The Bank is a federally chartered savings bank, the
deposits of which are insured by the Savings Association Insurance Fund, which
is administered by the FDIC. In December 1996, we formed a wholly owned,
Delaware subsidiary, BNKU Holdings, Inc., which is now the direct parent company
of the Bank.
The Bank's capital levels at March 31, 1999 and September 30, 1998
qualified it as "well-capitalized," the highest of five categories under
applicable regulatory definitions. The Bank's capital ratios at March 31, 1999
and September 30, 1998, and the applicable regulatory capital requirements, were
as follows:
<TABLE>
<CAPTION>
MARCH 31, SEPTEMBER 30, CAPITAL ADEQUACY WELL-CAPITALIZED
1999 1998 REQUIREMENT REQUIREMENT
----------- --------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Tangible capital..................... 6.73% 6.75% 1.50% --
Core/leverage capital................ 6.75% 6.77% 3.00% 5.00%
Tier 1 capital....................... 9.86% 9.97% -- 6.00%
Total risk-based capital............. 11.92% 10.48% 8.00% 10.00%
</TABLE>
5
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BANK UNITED CAPITAL TRUST
Bank United Capital Trust is a statutory business trust newly formed under
Delaware law by (1) a declaration of trust executed by us, as sponsor for the
trust, and by the trustees for the trust, and (2) the filing of a certificate of
trust with the Delaware Secretary of State. The declaration will be amended and
restated in its entirety substantially in the form filed as an exhibit to the
registration statement of which this prospectus forms a part, as of the date
securities of Bank United Capital Trust are initially issued. The amended
declaration will be qualified as an indenture under the Trust Indenture Act of
1939.
Bank United Capital Trust exists for the exclusive purposes of (1) issuing
two classes of trust securities, trust preferred securities and trust common
securities, which together represent undivided beneficial interests in the
assets of Bank United Capital Trust; (2) investing the gross proceeds of the
trust securities in our junior subordinated debt securities; and (3) engaging in
only those other activities necessary or incidental thereto.
We will directly or indirectly own all of the trust common securities. The
trust common securities will rank equally in right of payment, and payments will
be made thereon proportionately, with the trust preferred securities except that
upon the occurrence and during the continuance of an event of default under the
amended declaration, the rights of the holders of the trust common securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the trust
preferred securities. We will acquire, directly or indirectly, trust common
securities in a total liquidation amount equal to 3% of the total capital of
Bank United Capital Trust.
Bank United Capital Trust has a term of approximately 55 years, but may
terminate earlier as provided in its amended declaration. The business and
affairs of Bank United Capital Trust will be conducted by its trustees, who will
initially be appointed by us, as the direct or indirect holder of all the trust
common securities. We, as the direct or indirect holder of all of the trust
common securities of Bank United Capital Trust, will also be entitled to
appoint, remove or replace the Bank United Capital Trust trustees, unless an
event of default in respect of our junior subordinated debt securities held by
Bank United Capital Trust has occurred and is continuing.
The duties and obligations of the Bank United Capital Trust trustees will
be governed by the amended declaration. A majority of the Bank United Capital
Trust trustees (the "Regular Trustees") will be persons who are our employees,
officers, or affiliates.
One Bank United Capital Trust trustee will be a financial institution
unaffiliated with us that will act as property trustee and as indenture trustee
for purposes of the Trust Indenture Act, under the terms set forth in a
prospectus supplement (the "Property Trustee"). The Property Trustee will hold
title to the junior subordinated debt securities for the benefit of the holders
of the trust securities of Bank United Capital Trust. As holder of the junior
subordinated securities the Property Trustee will have the power to exercise all
rights, powers and privileges under the indenture related to the junior
subordinated debt securities. In addition, the Property Trustee will maintain
exclusive control of a segregated non-interest bearing bank account (the
"Property Account") to hold all payments made in respect of the junior
subordinated debt securities held by it for the benefit of the holders of the
trust preferred securities of Bank United Capital Trust. The Property Trustee
will make payments of distributions and payments on liquidation, redemption and
otherwise to the Property Account. Unless the Property Trustee maintains a
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, one Bank United Capital Trust trustee will have
its principal place of business or reside in the State of Delaware (the
"Delaware Trustee"). In limited circumstances that will be set forth in a
prospectus supplement relating to trust preferred securities, the holders of a
majority of the trust preferred securities will be entitled to appoint or remove
the Property Trustee or the Delaware Trustee.
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<PAGE>
The rights of the holders of the trust securities, including economic
rights, rights to information and voting rights, are set forth in the amended
declaration, the Delaware Business Trust Act and the Trust Indenture Act. We
will pay all fees and expenses related to Bank United Capital Trust and the
offering of trust securities, the payment of which will be guaranteed by us. The
office of the Delaware Trustee for Bank United Capital Trust in the State of
Delaware is The Bank of New York (Delaware), White Clay Center, Route 273,
Newark, Delaware 19711. The principal place of business of Bank United Capital
Trust will be c/o Bank United Corp., 3200 Southwest Freeway, Suite 2600,
Houston, Texas 77027 and its telephone number is (713) 543-6500.
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<PAGE>
DESCRIPTION OF OFFERED SECURITIES
If so indicated in the applicable prospectus supplement, the terms of any
securities may differ from the terms set forth below.
CLASS A COMMON STOCK
As of May 26, 1999, we had 28,462,326 shares of Class A common stock issued
and outstanding and 7,003,590 shares reserved for issuance under our stock
option plans and upon conversion of our Class B common stock. The material
provisions relating to our Class A common stock can be found in our certificate
of incorporation and by-laws, copies of which have been filed with the
Commission. See "Where You Can Find More Information."
PREFERRED STOCK
The following is a summary of the principal terms of our preferred stock.
This summary is not complete, may not contain all the information that is
important to you and is qualified in its entirety by the provisions of our
certificate of incorporation and by-laws, copies of which have been filed with
the Commission. See "Where You Can Find More Information."
Our Board of Directors is authorized by our certificate of incorporation to
provide, without further stockholder action, for the issuance of one or more
series of preferred stock. Our Board of Directors has the power to fix various
terms with respect to each series, including voting powers, designations,
preferences and relative, participating, optional or other special rights,
qualifications, limitations, restrictions and redemption, conversion or
exchangeability provisions.
The applicable prospectus supplement will set forth the following principal
terms of the series of preferred stock offered thereby:
o the designation, number of shares and liquidation preference per
share;
o initial public offering price;
o the dividend rate or rates;
o the index, if any, upon which the amount of dividends, if any, is
determined;
o the dates on which dividends, if any, will accrue and be payable and
the designated record dates for determining the holders entitled to
such dividends;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o provisions for issuance of global securities;
o the securities exchange, if any, on which the preferred stock will be
listed;
o the currency, which may be composite currency, in which dividends, if
any, will be payable if other than U.S. dollars;
o voting rights; and
o any additional terms, preferences or rights.
Under regulations adopted by the Office of Thrift Supervision, if the
holders of shares of any series of our preferred stock become entitled to vote
for the election of directors because our Board of Directors has failed to
declare or pay dividends on such series, such series may then be deemed a class
of "voting securities." In that case, an institutional holder of 25% or more
of such series, or an institutional holder of five percent or more if it
otherwise exercises a "controlling influence" over us, may then be subject to
regulation as a savings and loan holding company in accordance with the Home
Owner's Loan Act. In addition, if and when a series is deemed a class of voting
securities, any other savings and loan holding company may be required to obtain
the prior approval of the OTS to acquire five percent or more of such series,
and any person other than a savings and loan holding
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<PAGE>
company may be required to obtain the prior approval of the OTS to acquire ten
percent or more of such series.
The shares of preferred stock will, when issued, be fully paid and
nonassessable and will have no preemptive rights to subscribe for any additional
securities that we may issue. Unless otherwise specified in the applicable
prospectus supplement, the preferred stock will rank on a parity in all respects
with any outstanding preferred stock we may have and prior to our common stock
as to dividends and distributions of assets. Therefore, the rights of any
preferred stock that may subsequently be issued may limit the rights of the
holders of our common stock and preferred stock.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for each series of preferred stock will be specified in the applicable
prospectus supplement.
Because we are a holding company, our rights and the rights of our
creditors and our stockholders, including the holders of any shares of preferred
stock, to participate in any distribution of assets of any subsidiary upon the
subsidiary's liquidation or recapitalization will be subject to the prior claims
of the subsidiary's creditors, except to the extent that we may be a creditor
with recognized claims against the subsidiary.
The principal source of our revenues is dividends received from the Bank.
Various statutory provisions limit the amount of dividends the Bank and our
nonbank subsidiaries can pay without regulatory approval, and various
regulations can also restrict the payment of dividends. Changes in regulations
could further limit the ability of the Bank to pay dividends to us, and federal
statutes limit the ability of subsidiary banks to make loans to us.
DIVIDENDS. The holders of each series of our preferred stock will be
entitled to receive, when, as and if declared by our Board of Directors, out of
funds legally available for that purpose, cumulative or non-cumulative cash or
other dividends. We will describe the rate or rates and payment dates applicable
to each series of preferred stock in the applicable prospectus supplement. Such
rates may be fixed or variable or both. If variable, we will describe the
formula used for determining the dividend rate for each dividend period in the
applicable prospectus supplement. We will pay dividends to the holders of record
as they appear on our stock books on the record dates set by our Board of
Directors and specified in the applicable prospectus supplement. If our Board of
Directors fails to declare a dividend payable on a dividend payment date on any
series of the preferred stock for which dividends are noncumulative, then the
holders of these noncumulative series of the preferred stock will have no right
to receive a dividend in respect of the dividend period ending on such dividend
payment date, and we will have no obligation to pay a dividend for such period,
whether or not dividends on such series are declared payable on any future
dividend payment dates.
Unless otherwise indicated in the applicable prospectus supplement:
o we may not declare dividends on any other series or class of preferred
stock ranking on a parity as to dividends unless full cumulative
dividends on all outstanding shares of each series of cumulative
preferred stock have been paid in full or contemporaneously are
declared and paid through the most recent dividend payment date; and
o in the event that full cumulative dividends on such preferred stock
have not been declared and paid or set apart when due, we may not
declare or pay any dividends or other distributions on any other
shares of our stock ranking junior to the preferred stock, unless full
cumulative dividends on such preferred stock are made or set apart for
payment; but
o we may, however, pay dividends or distributions in shares of common
stock, or using options, warrants or rights to subscribe for or
purchase shares of common stock or other junior ranking stock.
REDEMPTION. The shares of any series of our preferred stock may be
redeemable at our option and may be subject to mandatory redemption under a
sinking fund or otherwise, in each case upon the
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terms, on the date or dates and at the redemption price or prices set forth in
the applicable prospectus supplement. If fewer than all shares of preferred
stock are to be redeemed, the shares to be redeemed will be selected by us
proportionately, by lot or by any other method determined by the Board of
Directors to be equitable.
If we have not paid any dividends on shares of any series of preferred
stock when due:
o we may not redeem shares of common stock or shares of capital stock
ranking junior to or on parity with the preferred stock;
o we may not redeem shares of such series of preferred stock unless we
simultaneously redeem all outstanding shares of such series; and
o we may not purchase or otherwise acquire any shares of such series;
but
o we may, however, purchase or acquire shares of such series under a
purchase or exchange offer made on the same terms to holders of all
shares of such series.
Any notice of redemption will be given by mailing the notice to each record
holder of the shares to be redeemed, not less than 40 days nor more than 70 days
prior to the redemption date, to the addresses of such holders as they appear on
our stock books. Each notice will state:
o the redemption date;
o the number of shares and series of preferred stock that we will
redeem;
o the redemption price and the manner in which we will pay and deliver
the redemption price;
o the place or places where holders must surrender certificates for the
shares of preferred stock to be redeemed in exchange for payment of
the redemption price;
o that dividends on the shares of preferred stock to be redeemed will
cease to accrue on such redemption date; and
o if we are redeeming fewer than all shares of any series of preferred
stock held by any holder, the number of shares that we will redeem.
If we have given notice of redemption, unless we have defaulted in
providing the requisite funds to redeem the shares we call for redemption, from
and after the redemption date for the shares of the series of the preferred
stock we call for redemption:
o dividends on the shares of preferred stock called for redemption will
cease to accrue;
o any right to convert the shares of preferred stock of such series will
terminate;
o shares of preferred stock of such series will no longer be deemed to
be outstanding; and
o rights of the holders of the shares of preferred stock of such series
as our stockholders, except the right to receive the redemption price,
will cease.
Once holders surrender certificates in accordance with the redemption
notice, we will provide funds to pay, and will cause to be paid, the redemption
price indicated in the notice. Any shares so redeemed must be properly endorsed
or assigned for transfer, if our Board of Directors so requires and the
redemption notice so states. If fewer than all of the shares represented by any
such certificate are redeemed, a new certificate will be issued representing the
unredeemed shares without cost to the holder thereof.
LIQUIDATION PREFERENCE. Upon our liquidation, dissolution or winding up,
the holders of shares of each series of our preferred stock will be entitled to
receive, out of our assets available for distribution to stockholders and before
any distribution of assets is made to or set apart for the holders of common
stock or any other shares of our stock ranking junior as to such a distribution
to the shares of such preferred series, an amount described in the applicable
prospectus supplement. If, upon our liquidation, dissolution or winding up, our
assets or the proceeds thereof are insufficient to pay in
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full the amounts payable with respect to shares of each series of preferred
stock and any other shares of our stock ranking on a parity, as to any such
distribution with that series of preferred stock, the holders of shares of that
series of preferred stock and the other parity shares will share ratably in the
distribution of our assets in proportion to the full respective preferential
amounts to which they are entitled. After payment to the holders of shares of
that series of preferred stock of the full preferential amounts to which they
are entitled, those holders will not be entitled to any further participation in
any distribution of assets by us, unless otherwise provided in the applicable
prospectus supplement. A consolidation or merger between us and one or more
corporations is not, for this purpose, a liquidation, dissolution or winding up.
The terms, if any, on which shares of any series of preferred stock are
convertible into or exchangeable for debt securities or common stock will be set
forth in the applicable prospectus supplement. These terms may include
provisions for conversion or exchange, either mandatorily, at the option of the
holder or at our option, in which the number of shares of common stock to be
received by the holders of preferred stock would be calculated according to the
market price of common stock as of a time stated in the applicable prospectus
supplement.
DEPOSITARY SHARES
We may elect to offer fractional interests in shares of our preferred
stock, rather than full shares of preferred stock. In that case, we will cause a
bank or trust company we select, with its principal executive office in the
United States and a combined capital and surplus of at least $50,000,000 (a
"Depositary"), to issue to the public receipts (the "Depositary Receipts")
evidencing one or more fractional interests in a share of preferred stock we
deposit with the Depositary (the "Depositary Shares"). Each Depositary Share
will represent a fraction of a share of a particular series of preferred stock
as described below and detailed in the prospectus supplement relating to a
particular series of the preferred stock and the series of Depositary Shares
issued in respect thereof. The shares of any series of preferred stock
underlying the Depositary Shares will be deposited with a Depositary under a
separate deposit agreement (the "Deposit Agreement") between us and a
Depositary which may serve as a Depositary for more than one series of
Depositary Shares.
The following is a summary of the principal terms of the Depositary Shares
and the Deposit Agreement. This summary is not complete, may not contain all of
the information that is important to you and is qualified in its entirety by
reference to the Deposit Agreement and Depositary Receipts relating to each
series of preferred stock. We have filed the forms of Deposit Agreement and
Depositary Receipt as exhibits to the registration statement of which this
prospectus forms a part, or incorporate them by reference. Please review those
documents for further details not described in the summary below.
The applicable prospectus supplement relating to a series of Depositary
Shares will set forth the name and address of the principal executive office of
the Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of a
share of preferred stock represented by such Depositary Share, to all the rights
and preferences of the preferred stock represented by such Depositary Share,
including dividend, voting, redemption, conversion and liquidation rights.
We may order the Depositary to issue temporary Depositary Receipts to
holders in the event the definitive Depositary Receipts are not ready at the
time of distribution. The temporary Depositary Receipts will be substantially
identical to, and will entitle holders to all the rights pertaining to, the
definitive Depositary Receipts. We will then have definitive Depositary Receipts
prepared without unreasonable delay. Holders will be able to exchange temporary
Depositary Receipts for definitive Depositary Receipts at our expense.
Holders of Depositary Shares may surrender Depositary Receipts to the
Depositary (unless we have previously called for redemption of the related
Depositary Shares) and receive the number of whole shares of the related series
of preferred stock and any money or other property represented by
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those Depositary Receipts. Holders will be entitled to receive whole shares of
preferred stock on the basis described in the applicable prospectus supplement.
After surrender of Depositary Receipts, holders will not be entitled to deposit
under the Deposit Agreement the shares of preferred stock received or to receive
Depositary Receipts for such shares of preferred stock. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of preferred stock to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares.
We do not expect that there will be any public trading market for the
preferred stock represented by Depositary Receipts except as represented by the
Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute all cash
dividends or other cash distributions received from us in respect of the
underlying shares of preferred stock to the record holders of Depositary Shares
relating to such preferred stock in proportion to the number of such Depositary
Shares owned by such holders on the relevant record date. The Depositary will
distribute only the amount, however, that it can distribute without attributing
to any holder of Depositary Shares a fraction of one cent, and any balance it
does not distribute will be added to and treated as part of the next amount it
receives for distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received from us to the record holders of Depositary Shares
entitled to the distribution. If the Depositary determines that it is not
feasible to make such distribution, it may, with our approval, sell such
property and distribute the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which the Depositary will make available to holders of Depositary Shares any
subscription or similar rights offered by us to holders of the series of
preferred stock underlying such Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES. If we decide to redeem a series of the
preferred stock represented by Depositary Shares, the Depositary will redeem the
Depositary Shares from the proceeds received by it resulting from the redemption
of the underlying preferred stock. The Depositary will mail a notice of
redemption not less than 30 and not more than 60 days prior to the redemption
date to the addresses of the record holders of the Depositary Shares as they
appear in the Depositary's books. The redemption price per Depositary Share will
equal the applicable fraction of the redemption price per share payable with
respect to such series of the preferred stock. Whenever we redeem preferred
stock held by the Depositary, the Depositary will redeem as of the same
redemption date the number of Depositary Shares representing the shares of
preferred stock so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary will select the Depositary Shares to be redeemed,
either proportionately or by lot.
After the redemption date, the Depositary Shares called for redemption will
no longer be deemed to be outstanding and all rights of the holders of the
Depositary Shares will cease, except the right to receive the monies payable
upon such redemption and any money or other property to which the holders of
such Depositary Shares were entitled upon such redemption upon surrender to the
Depositary of the Depositary Receipts evidencing such Depositary Shares.
VOTING THE UNDERLYING PREFERRED STOCK. We will send to the Depositary all
notices of meetings at which the holders of shares of the series of preferred
stock held by the Depositary are entitled to vote. The Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to that series of preferred stock. Each record holder
of such Depositary Shares on the record date may instruct the Depositary how to
vote with respect to the number of shares of preferred stock represented by such
holder's Depositary Shares. The record date for Depositary Shares will be the
same date as the record date for the preferred stock. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of preferred
stock underlying such Depositary Shares in accordance with such instructions. We
will agree to take all actions deemed
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necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of preferred stock for which it has
not received specific instructions from the holders of Depositary Shares
representing such preferred stock.
TAXATION. The IRS will treat owners of Depositary Shares as if they were
owners of the preferred stock represented by such Depositary Shares, and,
accordingly, owners will be entitled to take into account for federal income tax
purposes, income and deductions to which they would be entitled if they were
holders of such preferred stock. In addition:
o owners will not recognize gain or loss for federal income tax purposes
upon the withdrawal of preferred stock in exchange for Depositary
Shares as provided in the Deposit Agreement;
o the tax basis of each share of preferred stock to an exchanging owner
of Depositary Shares will, upon the exchange, be the same as the total
tax basis of the Depositary Shares exchanged; and
o the holding period for the preferred stock in the hands of an
exchanging owner of Depositary Shares will include the period during
which such person owned such Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT. We and the
Depositary may at any time amend the form of Depositary Receipts evidencing the
Depositary Shares and any provision of the Deposit Agreement. However, we may
not make any amendment that materially and adversely alters the rights of the
existing holders of Depositary Shares unless the record holders of at least a
majority of the Depositary Shares then outstanding approve the amendment. We or
the Depositary may terminate a Deposit Agreement only if:
o we have redeemed all Depositary Shares outstanding under the Deposit
Agreement; or
o there has been a final distribution in respect of the series of
preferred stock underlying the Depositary Shares in connection with
our liquidation, dissolution or winding up, and such distribution has
been distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY. We will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements. We will also pay charges of the Depositary in connection with the
initial deposit of the underlying shares of preferred stock and any redemption
of the preferred stock. Holders of Depositary Shares must pay other transfer and
other taxes and governmental charges and such other charges that the Deposit
Agreement requires them to pay.
MISCELLANEOUS. We will provide to the Depositary, and the Depositary will
forward to the holders of Depositary Shares, all reports and communications from
us that we are required to furnish to the holders of the underlying preferred
stock.
Neither we nor the Depositary will be liable if we are or it is prevented
or delayed by law or any circumstance beyond our control in performing our
obligations under the Deposit Agreement. Our obligations and the Depositary's
obligations under the Deposit Agreement are limited to performance in good faith
of our and their respective duties under the Deposit Agreement. In addition,
neither we nor the Depositary will be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or shares of underlying preferred
stock unless satisfactory indemnity is furnished. We and the Depositary may rely
upon written advice of counsel or accountants, or information provided by
persons presenting preferred stock for deposit, holders of Depositary Shares or
other persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any
time by delivering to us notice of its election to do so. We may also at any
time remove the Depositary. Any such resignation or removal will take effect
upon our appointment of a successor Depositary and its acceptance of such
appointment. We must appoint a successor Depositary within 60 days after
delivery
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of any notice of resignation by, or removal, of the Depositary. The successor
Depositary must be a bank or trust company with its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
JUNIOR SUBORDINATED DEBT SECURITIES
The following is a summary of the principal terms of the junior
subordinated debt preferred securities in which Bank United Capital Trust will
invest the proceeds from the issuance and sale of the trust securities. This
summary is not complete, may not contain all the information that is important
to you, and is qualified in its entirety by reference to, the junior
subordinated indenture, between us and the Bank of New York, as trustee (the
"Indenture Trustee"), the form of which is filed as an exhibit to the
registration statement of which this prospectus forms a part or is incorporated
by reference, as well as to the Trust Indenture Act. Wherever particular
sections or defined terms of the junior subordinated indenture are referred to,
such sections or defined terms are incorporated in this prospectus by reference
as part of the statement made, and the statement is qualified in its entirety by
such reference.
Under certain circumstances involving the dissolution of Bank United
Capital Trust, subject to obtaining any required regulatory approval, junior
subordinated debt securities will be distributed to the holders of the trust
securities in liquidation of Bank United Capital Trust. See "Trust Preferred
Securities -- Special Event Redemption or Distribution."
If the junior subordinated debt securities are distributed to the holders
of the trust preferred securities, we will use our best efforts to have the
junior subordinated debt securities listed on any national securities exchange
or similar organization on which the trust preferred securities are then listed
or quoted.
The junior subordinated indenture will not contain covenants or other
provisions that would afford protection to the holders of the junior
subordinated debt securities in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving us that
may adversely affect such holders.
We plan to sell junior subordinated debt securities to Bank United Capital
Trust under this prospectus. The applicable prospectus supplement relating to
the junior subordinated debt securities will set forth the following terms:
o the title;
o any limit on the amount that may be issued;
o whether or not the junior subordinated debt securities will be issued
in global form, and if so, the terms and who the depository will be;
o the securities exchange, if any, on which the junior subordinated debt
securities will be listed;
o the maturity date(s);
o the annual interest rate(s) (which may be fixed or variable) or the
method for determining the rate(s) and the date(s) interest will begin
to accrue, the date(s) interest will be payable and the regular record
dates for interest payment dates or the method for determining such
date(s);
o the place(s) where payments will be payable;
o our right, if any, to defer payment of interest and the maximum length
of any such deferral period;
o the date, if any, after which, and the price(s) at which, the junior
subordinated debt securities may, under any optional redemption
provisions, be redeemed at our option, and other related terms and
provisions;
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o the date(s), if any, on which, and the price(s) at which we are
obligated, under any mandatory sinking fund provisions or otherwise,
to redeem, or at the holder's option to purchase, the junior
subordinated debt securities and other related terms and provisions;
o the denominations in which the junior subordinated debt securities
will be issued, if other than denominations of $1000 and any integral
multiple thereof; and
o any other terms, none of which will be inconsistent with the junior
subordinated indenture.
CONVERSION OR EXCHANGE RIGHTS. The terms on which the junior subordinated
debt securities may be convertible into or exchangeable for Class A common stock
or any of our other securities will be set forth in the applicable prospectus
supplement. These terms will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder or at our option, and may
include provisions under which the number of shares of Class A common stock or
other securities to be received by the holders of the junior subordinated debt
securities would be subject to adjustment.
CONSOLIDATION, MERGER OR SALE. The junior subordinated indenture will not
contain any covenant which restricts our ability to merge or consolidate, or
sell, convey, transfer or otherwise dispose of all or substantially all of our
assets. Any successor or acquirer of such assets, however, must assume all of
our obligations under the junior subordinated indenture or the junior
subordinated debt securities, as appropriate.
ADDITIONAL INTEREST. Pursuant to the junior subordinated indenture, we
will agree to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States or
any other taxing authority on Bank United Capital Trust, so that the net amounts
received and retained by Bank United Capital Trust after paying any such taxes,
duties, assessments or other governmental charges will be not less than the
amounts Bank United Capital Trust would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
OPTION TO EXTEND INTEREST PAYMENT PERIOD. We can defer interest payments
by extending the interest payment period for the number of consecutive extension
periods specified in the applicable prospectus supplement (each, an "Extension
Period"). No Extension Period may extend beyond the maturity of the junior
subordinated debt securities. At the end of the Extension Period(s), we will pay
all interest then accrued and unpaid, together with interest thereon compounded
quarterly at the rate specified for the junior subordinated debt securities to
the extent permitted by applicable law. During any such Extension Period, we
will not make distributions related to our capital stock, including dividends,
redemptions, repurchases, liquidation payments, or guarantee payments. We may,
however, make distributions in connection with any of the following:
o repurchases, redemptions or other acquisitions of shares of our
capital stock in connection with any employment contract, benefit plan
or other similar arrangement with or for the benefit of employees,
officers, directors or consultants;
o an exchange or conversion of any class or series of our capital stock
for any other class or series of our capital stock; or
o the purchase of fractional interests in shares of our capital stock
under the conversion or exchange provisions of such capital stock or
the security being converted or exchanged.
In addition, during any such Extension Period, we will not make distributions
related to our debt securities that rank equally with or junior to the junior
subordinated debt securities, including any payment of interest, principal or
premium, or repayments, repurchases or redemptions. During Extension Periods, we
will, however, be able to pay stock dividends where the dividend stock is the
same stock as that on which the dividend is being paid.
Prior to the termination of any Extension Period, we may further defer
payments of interest by extending such Extension Period. However, an extended
Extension Period, including all such previous
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and further extensions, may not extend beyond the maturity of the junior
subordinated debt securities. Upon the termination of any Extension Period and
the payment of all amounts then due, we may commence a new Extension Period,
subject to the terms set forth in this section. Interest will not be due or
payable during an Extension Period, except at the end of the Extension Period.
We have no present intention of exercising our right to defer payments of
interest by extending the interest payment period on the junior subordinated
debt securities. If the Property Trustee is the sole holder of the junior
subordinated debt securities, we will give the Regular Trustees and the Property
Trustee notice of our selection of such Extension Period one business day prior
to the earlier of:
o the date distributions on the trust preferred securities would be
payable, if not for such Extension Period; and
o the date the Regular Trustees are required to give notice to the NYSE
or other applicable self-regulatory organization, or to holders of the
trust preferred securities, of the record date or the date such
distribution would be payable, if not for such Extension Period, but
in any event one business day prior to the record date.
The Regular Trustees will give notice of our selection of such Extension
Period to the holders of the trust preferred securities. If the Property Trustee
is not the sole holder of the junior subordinated debt securities, we will give
the holders of the junior subordinated debt securities notice of our selection
of such Extension Period ten business days prior to the earlier of:
o the next succeeding interest payment date; and
o the date upon which we are required to give notice to the NYSE or
other applicable self-regulatory organization, or to holders of the
junior subordinated debt securities, of the record or payment date of
such related interest payment.
As used in this prospectus, the term "business day" means any day other
than Saturday, Sunday or any other day on which banking institutions in New York
City are permitted or required by any applicable law to close.
EVENTS OF DEFAULT UNDER THE JUNIOR SUBORDINATED INDENTURE. The following
are events of default under the junior subordinated indenture with respect to
junior subordinated debt securities that we may issue to Bank United Capital
Trust:
o our failure to pay interest when due and such failure continues for 30
days and the time for payment has not been extended or deferred;
o our failure to pay the principal, or premium, if any, when due;
o our failure to observe or perform any other covenant contained in the
junior subordinated debt securities or the junior subordinated
indenture, and such failure continues for 90 days after we receive
notice from the Indenture Trustee or holders of at least 25% of the
total principal amount of the outstanding junior subordinated debt
securities; and
o our bankruptcy, insolvency or reorganization.
If an event of default with respect to the junior subordinated debt
securities occurs and is continuing, the Indenture Trustee or the holders of at
least 25% of the total principal amount of the outstanding junior subordinated
debt securities, by notice in writing to us (and to the Indenture Trustee if
notice is given by such holders), may declare the unpaid principal of, premium,
if any, and accrued interest, if any, due and payable immediately.
The holders of at least a majority of the total liquidation amount of the
trust preferred securities may waive any default or event of default with
respect to and its consequences, except defaults or events of default regarding:
o payment of principal, premium, if any, or interest; or
o certain covenants containing limitations on our ability to pay
dividends and make payments on debt securities in certain
circumstances.
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Any such waiver will cure such default or event of default.
Subject to the terms of the junior subordinated indenture, if an event of
default under the junior subordinated indenture occurs and is continuing, the
Indenture Trustee will be under no obligation to exercise any of its rights or
powers under the junior subordinated indenture at the request or direction of
any of the holders of the junior subordinated debt securities, unless such
holders have offered reasonable indemnity to the Indenture Trustee. The holders
of at least a majority of the total liquidation amount of the trust preferred
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred on the Indenture Trustee, with respect
to the junior subordinated debt securities, provided that:
o it is not in conflict with any law or the applicable provisions of the
junior subordinated indenture;
o the Indenture Trustee may take any other action deemed proper by it
which is not inconsistent with such direction; but
o subject to its duties under the Trust Indenture Act, the Indenture
Trustee need not take any action that might involve it in personal
liability or might be unduly prejudicial to the holders not involved
in the proceeding.
A holder of the junior subordinated debt securities will only have the
right to institute a proceeding under the junior subordinated indenture or to
appoint a receiver or trustee, or to seek other remedies if:
o the holder has given written notice to the Indenture Trustee of a
continuing event of default;
o the holders of at least 25% of the total principal amount of the
outstanding junior subordinated debt securities have made written
request, and such holders have offered reasonable indemnity to the
Indenture Trustee to institute such proceedings as trustee; and
o the Indenture Trustee does not institute such proceeding, and does not
receive from the holders of a majority of the total principal amount
of the outstanding junior subordinated debt securities other
conflicting directions within 60 days after such notice, request and
offer.
These limitations, however, do not apply to a suit instituted by a holder of
junior subordinated debt securities if we default in the payment of the
principal, premium, if any, or interest on, the junior subordinated debt
securities.
We will periodically file statements with the Indenture Trustee regarding
our compliance with certain of the covenants in the junior subordinated
indenture.
If an Event of Default under the amended declaration has occurred and is
attributable to our failure to pay principal, premium, if any, or interest on,
the junior subordinated debt securities, then each holder of the trust preferred
securities may sue us or seek other remedies to force payment to such holder of
the principal of, premium, if any, or interest on, such junior subordinated debt
securities having a principal amount equal to the total liquidation amount of
the trust preferred securities held by such holder. If you sue us to collect
payment, then we will assume your rights as a holder of trust preferred
securities under the amended declaration to the extent we make a payment to you
in any such legal action. The holders of trust preferred securities will not be
able to exercise directly any other remedy available to the holders of the
junior subordinated debt securities.
CERTAIN COVENANTS. If the junior subordinated debt securities are issued
to Bank United Capital Trust or a trustee of Bank United Capital Trust in
connection with the issuance of trust preferred securities by Bank United
Capital Trust, and
o there has occurred and is continuing an event of default under the
junior subordinated indenture,
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o we are in default with respect to our payment of any obligations under
the trust preferred securities guarantee, or
o we have given notice of our election to defer payments of interest on
the junior subordinated debt securities by extending the interest
payment period as provided in the junior subordinated indenture and
such period, or any extension thereof, is continuing,
then:
o we may not make distributions related to our debt securities that rank
equally with or junior to the junior subordinated debt securities,
including any payment of interest, principal or premium, or
repayments, repurchases or redemptions, and
o may not make distributions related to our capital stock, including
dividends, redemptions, repurchases, liquidation payments, or
guarantee payments, except that we may make distributions in
connection with any of the following:
1) repurchases, redemptions or other acquisitions of shares of our
capital stock in connection with any employment contract,
benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or consultants,
2) an exchange or conversion of any class or series of our capital
stock for any other class or series of our capital stock, or
3) the purchase of fractional interests in shares of our capital
stock under the conversion or exchange provisions of such
capital stock or the security being converted or exchanged.
These prohibitions will not, however, apply to any stock dividends paid by us
where the dividend stock is the same class of stock as that on which the
dividend is being paid.
In addition, as long as the trust preferred securities remain outstanding,
we will covenant:
o to directly or indirectly maintain 100% ownership of the trust common
securities of Bank United Capital Trust; provided, however, that any
permitted successor of ours under the junior subordinated indenture
may succeed to our ownership of such trust common securities;
o to not voluntarily dissolve, wind-up or terminate Bank United Capital
Trust, except in connection with a distribution of junior subordinated
debt securities as described under "Distribution of the Junior
Subordinated Debt Securities" and in connection with certain mergers,
consolidations or amalgamations permitted by the amended declaration;
o to timely perform our duties as sponsor of Bank United Capital Trust;
and
o to use reasonable efforts to cause Bank United Capital Trust to
1) remain a statutory business trust, except in connection with
the distribution of junior subordinated debt securities to the
holders of trust preferred securities in the event of the
liquidation of Bank United Capital Trust, the redemption of all
of the trust preferred securities of Bank United Capital Trust,
or certain mergers, consolidations or amalgamations, each as
permitted by the amended declaration, and
2) otherwise continue to be classified as a grantor trust for U.S.
federal income tax purposes.
DISCHARGE AND DEFEASANCE. We may discharge all of our obligations (except
those set forth below) to holders of the junior subordinated debt securities
issued under the junior subordinated indenture, which junior subordinated debt
securities have not already been delivered to the Indenture Trustee for
cancellation and which either have become due and payable or are by their terms
due and payable within one year (or are to be called for redemption within one
year) by depositing with the Indenture Trustee an amount certified to be
sufficient to pay when due the principal of and premium,
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if any, and interest on all outstanding junior subordinated debt securities and
to make any mandatory sinking fund payments thereon when due.
Unless otherwise specified in this prospectus with respect to the junior
subordinated debt securities:
(1) We, at our option, will be discharged from any and all obligations in
respect of the junior subordinated debt securities. However, we will
not be discharged from our obligations:
a) to pay all expenses of Bank United Capital Trust,
b) to register the transfer or exchange of junior subordinated debt
securities,
c) to replace mutilated, defaced, destroyed, lost or stolen junior
subordinated debt securities, and
d) to maintain paying agents and hold monies for payment in trust.
(2) If we deposit with the Indenture Trustee, in trust, money or U.S.
government obligations that through the payment of interest thereon
and principal thereof in accordance with their terms will provide
money in an amount sufficient to pay all the principal of (and
premium, if any) and any interest on the junior subordinated debt
securities on the dates such payments are due (which may include one
or more redemption dates designated by us) in accordance with the
terms of the junior subordinated debt securities, then
a) we, at our option, need not comply with certain covenants
specified in this prospectus with respect to the junior
subordinated debt securities, and
b) the occurrence of an event described in the third clause under "--
Events of Default Under the Junior Subordinated Indenture" above
with respect to any defeased covenant and any other event of
default provided in the applicable resolution of the Board of
Directors or supplemental indenture under which the junior
subordinated debt securities are issued will no longer be an event
of default.
Such a trust may only be established, if, among other things, the Indenture
Trustee has received an opinion of counsel to the effect that the holders of the
junior subordinated debt securities will not recognize gain or loss for federal
income tax purposes as a result of such deposit or defeasance and will be
subject to federal income tax in the same manner as if such defeasance had not
occurred, which, in the case of a discharge under clause (1) above, must be
based upon a ruling or administrative pronouncement of the IRS. In the event we
fail to comply with our remaining obligations under the junior subordinated
indenture after a defeasance of the junior subordinated indenture with respect
to the junior subordinated debt securities as described under clause (2) above
and the junior subordinated debt securities are declared due and payable because
of the occurrence of any undefeased event of default, the amount of money and
U.S. government obligations on deposit with the Indenture Trustee may be
insufficient to pay amounts due on the junior subordinated debt securities at
the time of the acceleration resulting from such event of default. However, we
will remain liable in respect of such payments.
MODIFICATION OF JUNIOR SUBORDINATED INDENTURE; WAIVER. Together with the
Indenture Trustee, we may change the junior subordinated indenture without the
consent of any holders with respect to a number of matters, including:
o to fix any ambiguity, defect or inconsistency in the junior
subordinated indenture; and
o to change anything that does not materially adversely affect the
interests of any holder of junior subordinated debt securities.
In addition, under the junior subordinated indenture, the rights of holders
of the junior subordinated debt securities may be changed by us and the
Indenture Trustee with the written consent of the holders of at least a majority
of the total liquidation amount of the trust preferred securities.
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However, the following changes may only be made with the consent of each holder
of the junior subordinated debt securities:
o extending the fixed maturity of the junior subordinated debt
securities;
o reducing the principal amount, reducing the rate of or extending the
time of payment of interest, or any premium payable upon the
redemption of any such junior subordinated debt securities; or
o reducing the percentage of junior subordinated debt securities, the
holders of which are required to consent to any amendment or waive our
compliance with any covenant or past default.
If the consent of the Property Trustee, as holder of the junior
subordinated debt securities, is required to consent to any amendment,
modification or termination of the junior subordinated indenture, the Property
Trustee will request directions from the holders of the trust preferred
securities.
FORM, EXCHANGE, AND TRANSFER. The junior subordinated debt securities will
be issuable only in fully registered form without coupons and, unless otherwise
specified in the applicable prospectus supplement, in denominations of $1,000
and any integral multiple thereof.
At the option of the holder, subject to the terms of the junior
subordinated indenture and the limitations applicable to global securities
described in the applicable prospectus supplement, junior subordinated debt
securities will be exchangeable for other junior subordinated debt securities,
in any authorized denomination and of like tenor and total principal amount.
Subject to the terms of the junior subordinated indenture and the
limitations applicable to global securities set forth in the applicable
prospectus supplement, junior subordinated debt securities may be presented for
exchange or for registration of transfer, duly endorsed or with the form of
transfer endorsed thereon duly executed if so required by us or the Indenture
Trustee, at the office of the security registrar or at the office of any
transfer agent we designate for such purpose. Unless otherwise provided in the
junior subordinated debt securities to be transferred or exchanged, no service
charge need be made for any registration of transfer or exchange, but we may
require the holder to pay any taxes or other governmental charges. We have
appointed the Indenture Trustee as security registrar. Any transfer agent in
addition to the security registrar initially designated by us for any junior
subordinated debt securities will be named in the applicable prospectus
supplement. We may at any time designate additional transfer agents or rescind
the designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that we will be required to maintain a
transfer agent in each place of payment for the junior subordinated debt
securities.
If the junior subordinated debt securities are to be redeemed, we will not
be required to:
o issue, register the transfer of, or exchange any junior subordinated
debt securities during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any
such junior subordinated debt securities that may be selected for
redemption and ending at the close of business on the day of such
mailing, or
o register the transfer of or exchange any junior subordinated debt
securities so selected for redemption, in whole or in part, except the
unredeemed portion of any such junior subordinated debt securities
being redeemed in part.
INFORMATION CONCERNING THE JUNIOR SUBORDINATED INDENTURE TRUSTEE. The
Indenture Trustee, other than during the occurrence and continuance of an event
of default under the junior subordinated indenture, undertakes to perform only
such duties as are specifically set forth in the junior subordinated indenture
and, upon an event of default under an junior subordinated indenture, must use
the same degree of care as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the Indenture Trustee is
under no obligation to exercise any of the powers given it by the junior
subordinated indenture at the request of any holder of junior subordinated debt
securities unless it is offered reasonable security and indemnity against the
costs,
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expenses and liabilities that it might incur. The Indenture Trustee is not
required to spend or risk its own money or otherwise become financially liable
while performing its duties unless it reasonably believes that it will be repaid
or receive adequate indemnity.
PAYMENT AND PAYING AGENTS. Unless otherwise indicated in the applicable
prospectus supplement, payment of the interest on any junior subordinated debt
securities on any interest payment date will be made to the person in whose name
such junior subordinated debt securities (or one or more predecessor securities)
are registered at the close of business on the regular record date for such
interest.
Principal of and any premium and interest on the junior subordinated debt
securities will be payable at the office of the paying agents designated by us,
except that, unless otherwise indicated in the applicable prospectus supplement,
interest payments may be made by check mailed to the holder. Unless otherwise
indicated in such prospectus supplement, the corporate trust office of the
Indenture Trustee in The City of New York will be designated as our sole paying
agent for payments with respect to junior subordinated debt securities. We will
be required to maintain a paying agent in each place of payment for the junior
subordinated debt securities.
All monies we pay to a paying agent or the Indenture Trustee for the
payment of the principal of or any premium or interest on any junior
subordinated debt securities which remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be
repaid to us, and the holder of the security thereafter may look only to us for
payment thereof.
SUBORDINATION OF JUNIOR SUBORDINATED DEBT SECURITIES. The junior
subordinated debt securities will be unsecured and will be subordinate and
junior in priority of payment to certain of our other indebtedness to the extent
described in the applicable prospectus supplement. The junior subordinated
indenture does not limit the amount of junior subordinated debt securities which
we may issue, nor does it limit us from issuing any other secured or unsecured
debt.
GLOBAL SECURITIES. The junior subordinated debt securities may be issued
in whole or in part in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary identified in the applicable
prospectus supplement ("Global Securities"). Global Securities will be issued
in registered form and in either temporary or permanent form. Unless and until
it is exchanged for junior subordinated debt securities in definitive form, a
temporary Global Security may not be transferred except as a whole by the
depositary for such Global Security to a nominee of such depositary or any such
nominee to a successor of such depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to the junior
subordinated debt securities will be described in the applicable prospectus
supplement. We anticipate that the following provisions will apply to any
depositary arrangements.
Upon the issuance of a Global Security, the depositary for such Global
Security or its nominee will credit the accounts of persons held with it with
the respective principal amounts of the securities represented by such Global
Security. Such accounts will be designated by the underwriters or agents with
respect to such securities or by us if such securities are offered and sold
directly by us. Ownership of beneficial interests in a Global Security will be
limited to participants, who are persons that have accounts with the depositary
for such Global Security or its nominee, or persons that may hold interests
through participants. Ownership of beneficial interests in such Global Security
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by the depositary (with respect to participants'
interests) for such Global Security or by participants or persons that hold
securities through participants (with respect to beneficial owners' interests).
FEES AND EXPENSES. The junior subordinated indenture provides that we will
pay all fees and expenses related to:
o the offering of the trust preferred securities and the junior
subordinated debt securities;
o the organization, maintenance and dissolution of Bank United Capital
Trust;
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o the retention of the Bank United Capital Trust trustees; and
o the enforcement by the Property Trustee of the rights of the holders
of the trust preferred securities.
GOVERNING LAW. The junior subordinated indenture and the junior
subordinated debt securities will be governed by and construed in accordance
with the laws of the State of New York except to the extent that the Trust
Indenture Act is applicable.
TRUST PREFERRED SECURITIES
The following is a summary of the principal terms of the trust preferred
securities. This summary is not complete, may not include all the information
that is important to you, and is qualified in its entirety by reference to the
amended declaration, the Delaware Business Trust Act and the Trust Indenture
Act. The amended declaration is filed as an exhibit to the registration
statement of which this prospectus forms a part, or is incorporated by
reference. The terms of the trust preferred securities will include those stated
in the amended declaration and those made part of the amended declaration by the
Trust Indenture Act.
The amended declaration authorizes the Regular Trustees to issue, on behalf
of Bank United Capital Trust two classes of trust securities, trust preferred
securities and trust common securities, each of which will have the terms
described in the applicable prospectus supplement. The proceeds from the sale of
the trust preferred securities will be used by Bank United Capital Trust to
purchase our junior subordinated debt securities. These junior subordinated debt
securities will be held in trust by the Property Trustee for the benefit of the
holders of the trust securities.
We will guarantee the payments of distributions and payments on redemption
or liquidation with respect to the trust preferred securities, but only to the
extent Bank United Capital Trust has funds available to make those payments and
has not made the payments. See "Guarantees."
The assets of Bank United Capital Trust available for distribution to the
holders of trust preferred securities will be limited to payments from us under
the junior subordinated debt securities held by Bank United Capital Trust. If we
fail to make a payment on the junior subordinated debt securities, Bank United
Capital Trust will not have sufficient funds to make related payments, including
distributions, on its trust preferred securities.
The trust preferred securities guarantee, when taken together with our
obligations under the junior subordinated debt securities, the junior
subordinated indenture related thereto and the amended declaration, will provide
a full and unconditional guarantee of amounts due on the trust preferred
securities issued by Bank United Capital Trust.
The trust preferred securities will have the terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as described in the
amended declaration or made part of the amended declaration by the Trust
Indenture Act or the Delaware Business Trust Act. The terms of the trust
preferred securities will mirror the terms of the junior subordinated debt
securities held by Bank United Capital Trust. In other words, the distribution
rate and the distribution payment dates and other payment dates for the trust
preferred securities will correspond to the interest rate and interest payment
dates and other payment dates on the junior subordinated debt securities.
The applicable prospectus supplement will set forth the principal terms of
the trust preferred securities offered thereby, including:
o the name of the trust preferred securities;
o the liquidation amount and number of trust preferred securities
issued;
o the annual distribution rate(s) or method of determining such rate(s),
the payment date(s) and the record dates used to determine the holders
who are to receive distributions;
o the date from which distributions will be cumulative;
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o the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions on which the trust preferred
securities will be purchased or redeemed, in whole or in part;
o the terms and conditions, if any, upon which the junior subordinated
debt securities and the related trust preferred securities guarantee
may be distributed to holders of such trust preferred securities;
o any securities exchange on which the trust preferred securities will
be listed;
o whether the trust preferred securities are to be issued in book-entry
form and represented by one or more global certificates, and if so,
the depository for such global certificates and the specific terms of
the depositary arrangements; and
o any other relevant rights, preferences, privileges, limitations or
restrictions of the trust preferred securities.
The applicable prospectus supplement will also describe certain U.S. federal
income tax considerations applicable to the purchase, holding and disposition of
such trust preferred securities.
EXTENSIONS. We have the right under the junior subordinated indenture to
defer payments of interest on the junior subordinated debt securities by
extending the interest payment period from time to time on the junior
subordinated debt securities. The Regular Trustees will give the holders of the
trust preferred securities notice of any Extension Period upon their receipt of
notice thereof from us. If distributions are deferred, the deferred
distributions and accrued interest thereon will be paid to holders of record of
the trust preferred securities as they appear on the books and records of Bank
United Capital Trust on the record date next following the termination of such
deferral period. See "Description of the Junior Subordinated Debt
Securities -- Interest" and "-- Option to Extend Interest Payment Period."
Distributions on the trust preferred securities will be made on the dates
payable to the extent that Bank United Capital Trust has funds available for the
payment of distributions in the Property Account. Bank United Capital Trust's
funds available for distribution to the holders of the trust securities will be
limited to payments received from us on the junior subordinated debt securities.
The payment of distributions out of monies held by Bank United Capital Trust is
guaranteed by us to the extent set forth under "-- Guarantees."
Distributions on the trust preferred securities will be payable to the
holders named on the securities register of Bank United Capital Trust at the
close of business on the relevant record dates, which, as long as the trust
preferred securities remain in book-entry only form, will be one business day
prior to the relevant payment dates. Distributions will be paid through the
Property Trustee who will hold amounts received in respect of the junior
subordinated debt securities in the Property Account for the benefit of the
holders of the trust securities. In the event that the trust preferred
securities do not continue to remain in book-entry only form, the relevant
record dates will conform to the rules of any securities exchange on which the
trust preferred securities are listed and, if none, the Regular Trustees will
have the right to select relevant record dates, which will be more than 14 days
but less than 60 days prior to the relevant payment dates. In the event that any
date on which distributions are to be made on the trust preferred securities is
not a business day, then payment of the distributions payable on such date will
be made on the next succeeding day which is a business day (and without any
interest or other payment in respect of any such delay), except that, if such
business day is in the next succeeding calendar year, such payment will be made
on the immediately preceding business day, in each case with the same force and
effect as if made on such record date.
MANDATORY REDEMPTION OF TRUST PREFERRED SECURITIES. The trust preferred
securities have no stated maturity date, but will be redeemed upon the maturity
of the junior subordinated debt securities or to the extent such junior
subordinated debt securities are redeemed prior to maturity. The junior
subordinated debt securities will mature on the date set forth in the applicable
prospectus supplement, and may be redeemed at any time, in whole but not in
part, in certain circumstances upon the
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occurrence of a Tax Event, an Investment Company Event or a Regulatory Capital
Event as described under "-- Special Event Redemption."
Upon the maturity of the junior subordinated debt securities, the proceeds
of the repayment thereof will simultaneously be applied to redeem all of the
outstanding trust securities at the Redemption Price. Upon the redemption of the
junior subordinated debt securities, either at our option or as a result of a
Tax Event, an Investment Company Event or a Regulatory Capital Event, the
proceeds from such redemption will simultaneously be applied to redeem trust
securities having a total liquidation amount equal to the total principal amount
of the junior subordinated debt securities so redeemed at the redemption price;
provided, that holders of trust securities will be given not less than 30 nor
more than 60 days' notice of such redemption. In the event that fewer than all
of the outstanding trust securities are to be redeemed, the trust securities
will be redeemed proportionately.
SPECIAL EVENT REDEMPTION. Subject to obtaining any required regulatory
approval, if a Tax Event, an Investment Company Event or a Regulatory Capital
Event (each, a "Special Event") occurs and is continuing, we will have the
right, upon not less than 30 nor more than 60 days' notice, to redeem the junior
subordinated debt securities, in whole but not in part, for cash within 90 days
following the occurrence of such Special Event. Following such redemption, Bank
United Capital Trust will use the proceeds to redeem all of the outstanding
trust securities. However, if at the time there is available to us or Bank
United Capital Trust the opportunity to eliminate, within such 90-day period,
the Special Event by taking some ministerial action, such as filing a form or
making an election or pursuing some other similar reasonable measure that will
have no adverse effect on us, Bank United Capital Trust, or the holders of the
trust securities, then we or Bank United Capital Trust will pursue such measure
in lieu of redemption.
The following events constitute Special Events for purposes of the
redemption provisions set forth in the preceding paragraph.
o "TAX EVENT" means that the Regular Trustees have received an opinion
of independent tax counsel experienced in such matters to the effect
that, as a result of:
1) any amendment to, change or announced proposed change in, the
laws or regulations of the United States or any of its
political subdivisions or taxing authorities, or
2) any official administrative pronouncement, action or judicial
decision interpreting or applying such laws or regulations,
which amendment or change becomes effective or proposed change,
pronouncement, action or decision is announced on or after the
date the trust preferred securities are issued and sold
there is more than an insubstantial risk that:
a) Bank United Capital Trust is or within 90 days would be
subject to U.S. federal income tax with respect to income
accrued or received on the junior subordinated debt
securities,
b) interest payable to Bank United Capital Trust on the junior
subordinated debt securities is not or within 90 days would
not be deductible, in whole or in part, by us for U.S.
federal income tax purposes, or
c) Bank United Capital Trust is or within 90 days would be
subject to a material amount of other taxes, duties or
other governmental charges.
o "INVESTMENT COMPANY EVENT" means that the Regular Trustees have
received an opinion of a nationally recognized independent counsel to
the effect that, as a result of an amendment to or change in the
Investment Company Act or regulations thereunder on or after the date
the trust preferred securities are issued and sold, there is more than
an insubstantial risk that Bank United Capital Trust is or will be
considered an "investment company" and be required to be registered
under the Investment Company Act.
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o "REGULATORY CAPITAL EVENT" means that we have received an opinion of
independent bank regulatory counsel experienced in such matters to the
effect that, as a result of
1) any amendment to or change (including any announced prospective
change) in the laws or any regulations thereunder of the United
States or any rules, guidelines or policies of the applicable
regulatory authorities having jurisdictions over us, or
2) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations which is
announced or becomes effective after the date of original
issuance of the trust preferred securities,
the trust preferred securities do not constitute, or within 90 days of
the date of such event would not constitute, Tier 1 capital or its
then equivalent applied as if we were a bank holding company (as that
concept is used in the guidelines or regulations issued by the Board
of Governors of the Federal Reserve System). However, the distribution
of junior subordinated debt securities by Bank United Capital Trust in
connection with its liquidation will not, in and of itself, be a
"Regulatory Capital Event" unless such liquidation occurs in
connection with a Tax Event or an Investment Company Event.
DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES. We will have the
right at any time to dissolve Bank United Capital Trust and, after satisfaction
of the liabilities of creditors of Bank United Capital Trust as provided by
applicable law, to cause junior subordinated debt securities to be distributed
to the holders of the trust preferred securities in a total stated principal
amount equal to the total stated liquidation amount of the trust preferred
securities then outstanding. Prior to any such dissolution, we will obtain any
required regulatory approvals. The right to dissolve the trust and distribute
the junior subordinated debt securities will be conditioned on the receipt by us
of an opinion rendered by an independent tax counsel that such distribution
would not result in the recognition of gain or loss for federal income tax
purposes by the holders.
If the junior subordinated debt securities are distributed to the holders
of the trust securities, we will use our best efforts to cause the junior
subordinated debt securities to be listed on the NYSE or on such other exchange
as the trust preferred securities are then listed.
After the date for any distribution of junior subordinated debt securities
upon dissolution of Bank United Capital Trust:
o the trust preferred securities will no longer be deemed to be
outstanding;
o the securities depositary or its nominee, as the record holder of the
trust preferred securities, will receive a registered global
certificate or certificates representing the junior subordinated debt
securities to be delivered upon such distribution; and
o any certificates representing trust preferred securities not held by
the depositary or its nominee will be deemed to represent junior
subordinated debt securities having a total principal amount equal to
the total stated liquidation amount of, with an interest rate
identical to the distribution rate of, and with accrued and unpaid
interest equal to accrued and unpaid distributions on, such trust
preferred securities until such certificates are presented to us or
our agent for transfer or reissuance.
We cannot provide any assurance as to the market prices for either the
trust preferred securities or the junior subordinated debt securities that may
be distributed in exchange for the trust preferred securities if a dissolution
and liquidation of Bank United Capital Trust were to occur. Accordingly, the
trust preferred securities that an investor may purchase, whether as a result of
the offer made hereby or in the secondary market, or the junior subordinated
debt securities that an investor may receive if a dissolution and liquidation of
Bank United Capital Trust were to occur, may trade at a discount to the price
that the investor paid to purchase the trust preferred securities offered
hereby.
REDEMPTION PROCEDURES. Bank United Capital Trust may not redeem fewer than
all of the outstanding trust securities unless all accrued and unpaid
distributions have been paid on all trust
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securities for all distribution periods terminating on or prior to the date of
redemption. In the event that fewer than all of the outstanding trust securities
are to be redeemed, the trust securities will be redeemed proportionately.
If Bank United Capital Trust gives a notice of redemption in respect of the
trust securities (which notice will be irrevocable), then, by 12:00 noon, New
York City time, on the redemption date, and if we have paid to the Property
Trustee a sufficient amount of cash in connection with the related redemption or
maturity of the junior subordinated debt securities, the Property Trustee will
irrevocably deposit with the depositary funds sufficient to pay the applicable
Redemption Price and will give the depositary irrevocable instructions and
authority to pay the Redemption Price to the holders of the trust preferred
securities, and the paying agent will pay the applicable Redemption Price to the
holders of the trust common securities by check. If notice of redemption has
been given and funds deposited as required, then, immediately prior to the close
of business on the date of such deposit, distributions will cease to accrue and
all rights of holders of trust preferred securities so called for redemption
will cease, except the right of the holders of such trust preferred securities
to receive the Redemption Price but without interest on such Redemption Price.
In the event that any date fixed for redemption of trust preferred securities is
not a business day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a business day (without any
interest or other payment in respect of any such delay), except that, if such
business day falls in the next calendar year, such payment will be made on the
immediately preceding business day. In the event that payment of the Redemption
Price in respect of trust preferred securities is improperly withheld or refused
and not paid either by Bank United Capital Trust, or by us under the trust
preferred securities guarantee, distributions on such trust preferred securities
will continue to accrue at the then applicable rate from the original redemption
date to the date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
Subject to the foregoing and applicable law, including, without limitation,
U.S. federal securities laws, we or our subsidiaries may at any time, and from
time to time, purchase outstanding trust preferred securities by tender, in the
open market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION. The amended declaration states
that Bank United Capital Trust will be dissolved:
o on the expiration of the term of Bank United Capital Trust;
o upon our bankruptcy;
o upon the filing of a certificate of dissolution or its equivalent with
respect to us;
o upon the filing of a certificate of cancellation with respect to Bank
United Capital Trust after obtaining the consent of at least a
majority in liquidation amount of the trust preferred securities,
voting together as a single class;
o 90 days after the revocation of our charter, but only if the charter
is not reinstated during that 90-day period;
o upon the distribution of the related junior subordinated debt
securities directly to the holders of the trust securities;
o upon the redemption of all of the trust securities; or
o upon entry of a court order for the dissolution of us or Bank United
Capital Trust.
In the event of a dissolution, after Bank United Capital Trust pays all
amounts owed to creditors, the holders of the trust preferred securities will be
entitled to receive:
o cash equal to the total liquidation amount of each trust preferred
security specified in an accompanying prospectus supplement, plus
accumulated and unpaid distributions to the date of payment, or
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o junior subordinated debt securities in a total principal amount equal
to the total liquidation amount of the trust preferred securities.
If Bank United Capital Trust cannot pay the full amount due on its trust
securities because insufficient assets are available for payment, then the
amounts payable by Bank United Capital Trust on its trust securities will be
paid proportionately. However, if an event of default under the related amended
declaration has occurred, the total amounts due on the trust preferred
securities will be paid before any distribution on the trust common securities.
DECLARATION EVENTS OF DEFAULT. An event of default under the junior
subordinated indenture relating to the junior subordinated debt securities is an
event of default under the amended declaration (a "Declaration Event of
Default"). See "-- Junior Subordinated Debt Securities -- Events of Default
Under the Junior Subordinated Indenture."
In addition, the voluntary or involuntary dissolution, winding up or
termination of Bank United Capital Trust is also a Declaration Event of Default,
except in connection with:
o the distribution of the junior subordinated debt securities to holders
of the trust securities of Bank United Capital Trust,
o the redemption of all of the trust securities of Bank United Capital
Trust, and
o mergers, consolidations or amalgamations permitted by the amended
declaration of Bank United Capital Trust.
Under the amended declaration, the holder of the trust common securities
will be deemed to have waived any Declaration Event of Default with respect to
the trust common securities until all Declaration Events of Default with respect
to the trust preferred securities have been cured, waived or otherwise
eliminated. Until such Declaration Events of Default with respect to the trust
preferred securities have been so cured, waived, or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the holders of
the trust preferred securities and only the holders of the trust preferred
securities will have the right to direct the Property Trustee with respect to
certain matters under the amended declaration and the junior subordinated
indenture. In the event that any Declaration Event of Default with respect to
the trust preferred securities is waived by the holders of the trust preferred
securities as provided in the amended declaration, under the amended declaration
the holders of trust common securities have agreed that such waiver also
constitutes a waiver of such Declaration Event of Default with respect to the
trust common securities for all purposes under the amended declaration without
any further act, vote or consent of the holders of trust common securities.
We and the Regular Trustees must file annually with the Property Trustee a
certificate evidencing compliance with all the applicable conditions and
covenants under the amended declaration.
Upon the occurrence of a Declaration Event of Default, the Property
Trustee, as the sole holder of the junior subordinated debt securities, will
have the right under the junior subordinated indenture to declare the principal
of, premium, if any, and interest on such junior subordinated debt securities to
be immediately due and payable.
If a Property Trustee fails to enforce its rights under the amended
declaration or the junior subordinated indenture to the fullest extent permitted
by law and subject to the terms of the amended declaration and the junior
subordinated indenture, any holder of trust preferred securities may sue us, or
seek other remedies, to enforce the Property Trustee's rights under the amended
declaration or the junior subordinated indenture without first instituting a
legal proceeding against such Property Trustee or any other person. If a
Declaration Event of Default occurs and is continuing as a result of our failure
to pay principal of or premium, if any, or interest on the junior subordinated
debt securities when payable, then a holder of such trust preferred securities
may directly sue us or seek other remedies, to collect its proportionate share
of payments owned. See "Relationship Among The Trust
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Preferred Securities, The Trust Preferred Securities Guarantee And The Junior
Subordinated Notes Held By Bank United Capital Trust."
REMOVAL AND REPLACEMENT OF TRUSTEES. Only the holders of trust common
securities have the right to remove or replace the trustees of Bank United
Capital Trust, except that while an event of default in respect of the junior
subordinated debt securities has occurred or is continuing, the holders of a
majority of the trust preferred securities will have this right. The resignation
or removal of any trustee and the appointment of a successor trustee will be
effective only on the acceptance of appointment by the successor trustee in
accordance with the provisions of the amended declaration.
CONVERSION OR EXCHANGE RIGHTS. The terms on which the trust preferred
securities are convertible into or exchangeable for common stock or our other
securities will be set forth in the applicable prospectus supplement. Such terms
will include provisions as to whether conversion or exchange is mandatory, at
the option of the holder or at our option, and may include provisions under
which the number of shares of common stock or our other securities to be
received by the holders of trust preferred securities would be subject to
adjustment.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS OF BANK UNITED CAPITAL
TRUST. Bank United Capital Trust may not consolidate, amalgamate, merge with or
into, or be replaced by or convey, transfer or lease their properties and assets
substantially as an entirety to any other corporation or other body (each, a
"Merger Event"), except as described below. Bank United Capital Trust may,
with the consent of a majority of its Regular Trustees and without the consent
of the holders of its trust securities, consolidate, amalgamate, merge with or
into, or be replaced by another trust, provided that:
o the successor entity either
1) assumes all of the obligations of Bank United Capital Trust
relating to its trust securities, or
2) substitutes other securities for the trust securities that are
substantially similar to such trust securities, so long as the
successor securities rank the same as such trust securities for
distributions and payments upon liquidation, redemption and
otherwise;
o we acknowledge a trustee of such successor entity who has the same
powers and duties as the Property Trustee of Bank United Capital
Trust, as the holder of the junior subordinated debt securities;
o the trust preferred securities are listed, or any successor securities
will be listed, upon notice of issuance, on the same securities
exchange or other organization that the trust preferred securities are
then listed;
o the Merger Event does not cause the trust preferred securities or
successor securities to be downgraded by any nationally recognized
rating agency;
o the Merger Event does not adversely affect the rights, preferences and
privileges of the holders of the trust securities or successor
securities in any material way, other than with respect to any
dilution of the holders' interest in the new entity;
o the successor entity has a purpose identical to that of Bank United
Capital Trust;
o prior to the Merger Event, we have received an opinion of counsel from
a nationally recognized law firm stating that
1) such Merger Event does not adversely affect the rights of the
holders of the trust preferred securities or any successor
securities in any material way, other than with respect to any
dilution of the holders' interest in the new entity, and
2) following the Merger Event, neither Bank United Capital Trust nor
the successor entity will be required to register as an investment
company under the Investment Company Act; and
o we guarantee the obligations of the successor entity under the
successor securities in the same manner as in the trust preferred
securities guarantee.
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In addition, unless all of the holders of the trust preferred securities
and trust common securities approve otherwise, Bank United Capital Trust will
not consolidate, amalgamate, merge with or into, or be replaced by any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it, if, in the opinion of a nationally recognized tax counsel
experienced in such matters, the transaction would cause Bank United Capital
Trust or the successor entity to be classified other than as a grantor trust for
U.S. federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF DECLARATION. The holders of trust preferred
securities have no voting rights except as discussed under " -- Mergers,
Consolidations or Amalgamations of Bank United Capital Trust" and
"Guarantees -- Amendments and Assignment," and as otherwise required by law
and the amended declaration.
The amended declaration may be amended if approved by a majority of the
Regular Trustees of Bank United Capital Trust. However, if any proposed
amendment provides for, or such Regular Trustees otherwise propose to effect,
1) any action that would adversely affect the powers, preferences or
special rights of the trust securities, whether by way of amendment
to such amended declaration or otherwise, or
2) the dissolution, winding-up or termination of Bank United Capital
Trust other than under the terms of its amended declaration,
then the holders of the trust preferred securities as a single class will be
entitled to vote on such amendment or proposal. In that case, the amendment or
proposal will only be effective if approved by at least a majority in
liquidation amount of the trust preferred securities affected by such amendment
or proposal.
No amendment may be made to an amended declaration if such amendment would:
o cause Bank United Capital Trust to be characterized as other than a
grantor trust for U.S. federal income tax purposes;
o reduce or otherwise adversely affect the powers of the Property
Trustee; or
o cause Bank United Capital Trust to be deemed to be an "investment
company" which is required to be registered under the Investment
Company Act.
The holders of a majority of the total liquidation amount of the trust
preferred securities have the right to:
o direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee; or
o direct the exercise of any trust or power conferred upon such Property
Trustee under the amended declaration, including the right to direct
the Property Trustee, as the holder of the junior subordinated debt
securities, to
1) exercise the remedies available under the junior subordinated
indenture with respect to the junior subordinated debt securities,
2) waive any event of default under the junior subordinated indenture
that is waivable, or
3) cancel an acceleration of the principal of the junior subordinated
debt securities.
However, if the junior subordinated indenture requires the consent of the
holders of a super-majority of the total principal amount of the junior
subordinated debt securities, then the Property Trustee must get approval of the
holders of a super-majority in liquidation amount of the trust preferred
securities.
In addition, before taking any of the foregoing actions, the Property
Trustee must obtain an opinion of counsel stating that, as a result of such
action, Bank United Capital Trust will continue to be classified as a grantor
trust for U.S. federal income tax purposes.
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The Property Trustee will notify all trust preferred securities holders of
any notice received from the Indenture Trustee with respect to the junior
subordinated debt securities held by Bank United Capital Trust.
As described in the amended declaration, the Property Trustee may hold a
meeting to have holders of trust preferred securities vote on a change or have
them approve a change by written consent.
If a vote by the holders of trust preferred securities is taken or a
consent is obtained, any trust preferred securities that are owned by us or any
of our affiliates will, for purposes of the vote or consent, be treated as if
they were not outstanding, which will have the following consequences:
o we and any of our affiliates will not be able to vote on or consent to
matters requiring the vote or consent of holders of trust preferred
securities; and
o any trust preferred securities owned by us or any of our affiliates
will not be counted in determining whether the required percentage of
votes or consents has been obtained.
INFORMATION CONCERNING THE PROPERTY TRUSTEE. For matters relating to
compliance with the Trust Indenture Act, the Property Trustee will have all of
the duties and responsibilities of an indenture trustee under the Trust
Indenture Act. The Property Trustee, other than during the occurrence and
continuance of a Declaration Event of Default, undertakes to perform only such
duties as are specifically set forth in the amended declaration and, upon a
Declaration Event of Default, must use the same degree of care and skill as a
prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the Property Trustee is under no obligation to
exercise any of the powers given it by the applicable amended declaration at the
request of any holder of trust preferred securities unless it is offered
reasonable security or indemnity against the costs, expenses and liabilities
that it might incur. However, the holders of the trust preferred securities will
not be required to offer such an indemnity where the holders, by exercising
their voting rights, direct the Property Trustee to take any action following a
Declaration Event of Default.
MISCELLANEOUS. The Regular Trustees are authorized and directed to conduct
the affairs of and to operate Bank United Capital Trust in such a way that:
o it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
o it will be classified as a grantor trust for U.S. federal income tax
purposes; and
o the junior subordinated debt securities held by it will be treated as
our indebtedness for U.S. federal income tax purposes.
We and the Regular Trustees are authorized to take any action, so long as
it is consistent with applicable law or the certificate of trust or amended
declaration, that we and the Regular Trustees determine to be necessary or
desirable for such purposes.
Holders of trust preferred securities have no preemptive or similar rights.
Bank United Capital Trust may not borrow money, issue debt, execute
mortgages or pledge any of its assets.
GOVERNING LAW. The amended declaration and the related trust preferred
securities will be governed by and construed in accordance with the laws of the
State of Delaware.
GUARANTEES
We will execute a trust preferred securities guarantee, for the benefit of
the holders of trust preferred securities, at the time that Bank United Capital
Trust issues the trust preferred securities. The trust preferred securities
guarantee will be qualified as an indenture under the Trust Indenture Act. The
Bank of New York will act as the trustee ("Guarantee Trustee") under the trust
preferred securities guarantee for the purposes of compliance with the Trust
Indenture Act. The terms of the trust preferred securities guarantee will be
those set forth in the trust preferred securities guarantee and those made part
of the trust preferred securities guarantee by the Trust Indenture Act. The
following is a summary of the principal terms of the trust preferred securities
guarantee. This summary is not
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complete and is qualified in its entirety by reference to the form of trust
preferred securities guarantee, which is filed as an exhibit to the registration
statement of which this prospectus forms a part or is incorporated by reference,
and the Trust Indenture Act. The Guarantee Trustee will hold the trust preferred
securities guarantee for the benefit of the holders of trust preferred
securities.
We will irrevocably agree, as described in the trust preferred securities
guarantee, to pay in full, to the holders of the trust preferred securities
issued by Bank United Capital Trust, the trust preferred securities guarantee
payments (except to the extent previously paid), when and as due, regardless of
any defense, right of set-off or counterclaim which Bank United Capital Trust
may have or assert. The following payments, to the extent not paid by Bank
United Capital Trust, will be covered by the trust preferred securities
guarantee:
o any accrued and unpaid distributions required to be paid on the trust
preferred securities, to the extent that Bank United Capital Trust has
funds available to make the payment;
o the redemption price, to the extent that Bank United Capital Trust has
funds available to make the payment; and
o upon a voluntary or involuntary dissolution and liquidation of Bank
United Capital Trust (other than in connection with a distribution of
junior subordinated debt securities to holders of such trust preferred
securities or the redemption of all such trust preferred securities),
the lesser of
1) the total of the liquidation amount specified in the prospectus
supplement for each trust preferred security plus all accrued and
unpaid distributions on the trust preferred securities to the date
of payment, to the extent Bank United Capital Trust has funds
available to make the payment, and
2) amount of assets of Bank United Capital Trust remaining available
for distribution to holders of its trust preferred securities upon
a dissolution and liquidation of the trust.
Our obligation to make a trust preferred securities guarantee payment may
be satisfied by directly paying the required amounts to the holders of the trust
preferred securities or by causing Bank United Capital Trust to pay the amounts
to the holders.
The trust preferred securities guarantee will be a guarantee on a
subordinated basis with respect to the trust preferred securities from the time
of issuance of the trust preferred securities, but will not apply to any payment
of distributions or redemption price, or to payments upon the dissolution,
winding-up or termination of Bank United Capital Trust, except to the extent
Bank United Capital Trust has funds available therefor. If we do not make
interest payments on the junior subordinated debt securities, Bank United
Capital Trust will not pay distributions on the trust preferred securities and
will not have funds available therefor. See "-- Junior Subordinated Debt
Securities."
No single document executed by us relating to the issuance of trust
preferred securities will provide for our full, irrevocable and unconditional
guarantee of the trust preferred securities. It is our obligations under the
junior subordinated indenture, the trust preferred securities guarantee and
amended declaration taken together that have the effect of providing a full,
irrevocable and unconditional guarantee of the trust's obligations under its
trust preferred securities.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEE. Our obligations under
the trust preferred securities guarantee will rank junior in priority of payment
to all of our senior indebtedness. This means that we cannot make any payments
on the trust preferred securities guarantee if we default on a payment of senior
indebtedness and do not cure the default within the applicable grace period, or
if the senior indebtedness becomes immediately due because of a default and has
not yet been paid in full. In addition, our obligations under the trust
preferred securities guarantee will rank junior to all existing and future
liabilities of our subsidiaries.
The amended declaration will require that the holder of trust preferred
securities accept the subordination provisions and other terms of the trust
preferred securities guarantee. The trust preferred securities guarantee will
constitute a guarantee of payment and not of collection. In other words, the
holder of the guaranteed security may sue us, or seek other remedies, to enforce
its rights under the trust preferred securities guarantee without first suing
any other person or entity. A trust preferred securities guarantee will not be
discharged except by payment of the trust preferred securities
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guarantee payments in full to the extent not previously paid or upon
distribution of the junior subordinated debt securities to the holders of trust
preferred securities under the amended declaration.
MATERIAL COVENANTS RELATED TO THE TRUST PREFERRED SECURITIES GUARANTEE. In
the trust preferred securities guarantee, we will covenant that, so long as any
trust preferred securities remain outstanding, if there is an event of default
under the trust preferred securities guarantee or the amended declaration:
o we will not make distributions related to our debt securities that
rank equally with or junior to the junior subordinated debt
securities, including any payment of interest, principal or premium,
or repayments, repurchases or redemptions; and
o we will not make distributions related to our capital stock, including
dividends, redemptions, repurchases, liquidation payments, or
guarantee payments. We may, however, make distributions in connection
with any of the following:
1) repurchases, redemptions or other acquisitions of shares of our
capital stock in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of
employees, officers, directors or consultants,
2) an exchange or conversion of any class or series of our capital
stock for any other class or series of our capital stock, or
3) the purchase of fractional interests in shares of our capital
stock under the conversion or exchange provisions of such capital
stock or the security being converted or exchanged.
The trust preferred securities guarantee, however, will except from the
foregoing any stock dividends paid by us where the dividend stock is the same
stock as that on which the dividend is being paid.
AMENDMENTS AND ASSIGNMENT. Except with respect to any changes which do not
adversely affect the rights of holders of trust preferred securities in any
material respect (in which case no consent of such holders will be required), a
trust preferred securities guarantee may only be amended with the prior approval
of the holders of at least a majority of the total liquidation amount of such
trust preferred securities (excluding any such trust preferred securities held
by us or any of our affiliates). A description of the requirements for obtaining
any approval is described under "Trust Preferred Securities -- Voting Rights;
Amendment of Declaration." All guarantees and agreements contained in the trust
preferred securities guarantee will be binding on our successors, assigns,
receivers, trustees and representatives and are for the benefit of the holders
of the applicable trust preferred securities.
TRUST PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT. An event of
default under the trust preferred securities guarantee will occur if we fail to
make any of our required payments or perform our obligations under the trust
preferred securities guarantee.
The holders of at least a majority of the total liquidation amount of the
trust preferred securities (excluding any trust preferred securities held by us
or any of our affiliates) will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee or to direct the exercise of any trust or power given to the Guarantee
Trustee under the trust preferred securities guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE. The Guarantee Trustee under
the trust preferred securities guarantee, other than during the occurrence and
continuance of an event of default under such trust preferred securities
guarantee, will only perform the duties that are specifically described in such
trust preferred securities guarantee. After such a default, the Guarantee
Trustee will exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Guarantee Trustee is under no obligation to exercise any of its
powers as described in the trust preferred securities guarantee at the request
of any holder of covered trust preferred securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that it might
incur.
TERMINATION OF THE TRUST PREFERRED SECURITIES GUARANTEE. The trust
preferred securities guarantee will terminate once the trust preferred
securities are paid in full or upon distribution of the
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junior subordinated debt securities to the holders of such trust preferred
securities. The trust preferred securities guarantee will continue to be
effective or will be reinstated if at any time any holder of trust preferred
securities must restore payment of any sums paid under such trust preferred
securities or such trust preferred securities guarantee.
GOVERNING LAW. The trust preferred securities guarantee will be governed
by and construed in accordance with the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE TRUST PREFERRED SECURITIES GUARANTEE
AND THE JUNIOR SUBORDINATED NOTES HELD BY BANK UNITED CAPITAL TRUST
We will guarantee payments of distributions and redemption and liquidation
payments due on the trust preferred securities (to the extent the trust has
funds available for the payments) to the extent described under "Description of
Offered Securities -- Guarantees." No single document executed by us in
connection with the issuance of the trust preferred securities will provide for
our full, irrevocable and unconditional guarantee of such trust preferred
securities. It is only the combined operation of our obligations under the trust
preferred securities guarantee, the amended declaration and the junior
subordinated indenture that has the effect of providing a full, irrevocable and
unconditional guarantee of Bank United Capital Trust's obligations under the
trust preferred securities.
As long as we make payments of interest and other payments when due on the
junior subordinated debt securities held by Bank United Capital Trust, such
payments will be sufficient to cover the payment of distributions and redemption
and liquidation payments due on the trust preferred securities issued by Bank
United Capital Trust, primarily because:
o the total principal amount of the junior subordinated debt securities
will be equal to the sum of the total liquidation amount of the trust
securities;
o the interest rate and interest and other payment dates on the junior
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the trust preferred
securities;
o we will pay for any and all costs, expenses and liabilities of
Bank United Capital Trust except its obligations under its trust
preferred securities; and
o each amended declaration provides that Bank United Capital Trust
will not engage in any activity that is not consistent with the
limited purposes of Bank United Capital Trust.
If and to the extent that we do not make payments on the junior
subordinated debt securities, Bank United Capital Trust will not have funds
available to make payments of distributions or other amounts due on its trust
preferred securities. In those circumstances, you will not be able to rely upon
the trust preferred securities guarantee for payment of these amounts. Instead,
you may directly sue us or seek other remedies to collect your proportionate
share of payments owed. If you sue us to collect payment, then we will assume
your rights as a holder of trust preferred securities under the amended
declaration to the extent we make a payment to you in any such legal action.
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SELLING STOCKHOLDERS
The selling stockholders are the general partners and some of the limited
partners of Hyperion Partners L.P., a Delaware limited partnership, and three
other entities with which an affiliate of Hyperion Partners has a fiduciary
relationship. The applicable prospectus supplement for any offering of Class A
common stock by selling stockholders will include the following information:
o the name of the selling stockholders;
o the number of shares held by each of the selling stockholders;
o the percentage of the class of shares held by each of the selling
stockholders; and
o the number of shares of Class A common stock offered by each of the
selling stockholders.
SELLING STOCKHOLDER LETTER AGREEMENT
The following summary of the material provisions of the letter agreement
that affects the selling stockholders is qualified in its entirety by reference
to the letter agreement that we filed as an exhibit to the registration
statement on Form S-1 (File No. 333-06229), which we filed with the Commission
on August 7, 1996 in connection with our IPO. Please review the exhibit for
further details not described in the summary in this section.
In connection with our IPO in August, 1996, some of the holders of our
common stock, including all of the selling stockholders with the exception of
the FDIC, entered into a letter agreement with us. This letter agreement
restricts the holders' ability to sell our common stock, other than the shares
sold in the IPO, for a specific period of time. Under the terms of the letter
agreement, each selling stockholder who retained shares of common stock
following the IPO was not permitted to sell such shares for (1) one year after
the IPO, if the stock was received in respect of general partnership interests
in Hyperion Partners, or (2) six months after the IPO, if the stock was received
in respect of limited partnership interests in Hyperion Partners (although a
regulated New Jersey insurance company was permitted to sell shares in a private
off-market transaction subject to Rule 144 limits and reasonable representations
requested by the underwriters). Each holder of 5% or more of our common stock
was permitted to sell up to 45% of such holder's shares of common stock in the
IPO, except for certain affiliates of Lehman Brothers Inc., which were
prohibited from selling any shares until August 8, 1998. Any other selling
stockholder was permitted to sell up to 16% of its shares in the IPO. Each
selling stockholder acknowledged that, except for shares that could have been
sold under the IPO but were not sold at the election of a 5% stockholder, no 5%
stockholder is permitted by our by-laws to acquire or transfer any shares of our
capital stock for three years following the IPO (or upon termination of the
letter agreement, if earlier) unless as of an earlier date our Board determines
that such acquisition or transfer would not be reasonably likely to have a
material adverse effect on our tax position.
At March 31, 1999, 8,205,778 shares of our common stock were still subject
to the restrictions of the letter agreement. The letter agreement may be
terminated by agreement of each of the parties, and if not terminated will
expire on August 8, 1999, which is the third anniversary of our IPO. We have not
registered 966,037 shares of our Class A common stock that are no longer subject
to the restrictions of the letter agreement and can be sold under Rule 144 of
the Securities Act.
Under the letter agreement, we filed registration statements under the
Securities Act with respect to 10,348,781 shares of Class A common stock held by
the selling stockholders. We are obligated to take action to keep such
registration statements effective, subject to occasional periods of suspension
of effectiveness as necessary, until the first to occur of:
o the date on which all shares of common stock registered under the
registration statements have been sold;
o December 31, 1999; and
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o the date on which such registration under the Securities Act is no
longer required to sell such shares without restriction.
The registration statement, of which this prospectus forms a part, which
registers 8,205,778 shares still restricted under the letter agreement and the
966,037 shares that have not been registered is being filed in order to register
the remaining common shares subject to our registration obligation under the
letter agreement.
PLAN OF DISTRIBUTION
We may sell Class A common stock, preferred stock, junior subordinated debt
securities or Guarantees; Bank United Capital Trust may sell trust preferred
securities; and the selling stockholders may sell Class A common stock. All of
such securities may be offered hereby in one or more of the following ways from
time to time:
o to underwriters for resale to the public or to investors;
o directly to investors; or
o through agents to the public or to investors.
The applicable prospectus supplements will set forth the terms of the
offering of the securities, including the name or names of any underwriters or
agents, the initial public offering price of such securities and the proceeds to
us, Bank United Capital Trust, or the selling stockholders, as the case may be,
from such sale, any underwriting discounts or agency fees and other items
constituting underwriters' or agents' compensation, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
such securities may be listed.
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in a prospectus supplement, the obligations of
the underwriters to purchase any series of securities will be subject to certain
conditions and the underwriters will be obligated to purchase all the securities
of the series, if any are purchased.
Underwriters and agents may be entitled under agreements entered into with
us and/or Bank United Capital Trust and/or the selling stockholders to
indemnification by us and/or Bank United Capital Trust and/or the selling
stockholders against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which the
underwriters or agents may be required to make in respect thereof. Underwriters
and agents may be customers of, engage in transactions with, or perform services
for us and our affiliates in the ordinary course of business.
Each series of offered securities will be a new issue of securities and
will have no established trading market other than the Class A common stock,
which is listed on the NASDAQ. Any Class A common stock sold under a prospectus
supplement will be listed on the NASDAQ, subject to official notice of issuance.
Any underwriters to whom securities are sold by us, by Bank United Capital Trust
or the selling stockholders for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The securities may or
may not be listed on a national securities exchange.
We cannot assure you that we, Bank United Capital Trust or the selling
stockholders will offer or sell any securities under this prospectus.
Neither we nor Bank United Capital Trust will receive any proceeds from the
sales of shares of Class A common stock by the selling stockholders. We will,
however, bear certain expenses in connection with the registration of the
securities being offered under this prospectus by Bank United Capital Trust and
the selling stockholders, including all costs incident to the offering and sale
of the
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securities to the public other than any commissions and discounts of
underwriters, dealers or agents and any transfer taxes.
The selling stockholders, and any broker-dealer who acts in connection with
the sale of offered securities hereunder, may be deemed to be an "underwriter"
as that term is defined in the Securities Act, and any commissions received by
them and profit on any resale of the offered securities as principal may be
deemed to be underwriting discounts and commissions under the Securities Act.
We have not authorized anyone (including any salesman or broker) to give
oral or written information about this offering that is different from the
information included in this prospectus or that is not included in this
prospectus.
LEGAL MATTERS
Wachtell, Lipton, Rosen & Katz, New York, New York will pass upon the
validity of the Class A common stock, the preferred stock, the Depositary
Shares, the trust preferred securities, the junior subordinated debt securities,
the trust preferred securities guarantee and certain matters relating thereto
and certain U.S. federal income tax matters for us, the selling stockholders and
Bank United Capital Trust. Simpson Thacher & Bartlett, New York, New York will
pass upon certain legal matters relating to the offered securities for the
underwriters, as set forth in the applicable prospectus supplement.
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this prospectus by reference from Bank United Corp.'s Annual
Report on Form 10-K for the year ended September 30, 1998 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated by reference in this prospectus, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
With respect to the unaudited interim financial information for the periods
ended December 31, 1998 and March 31, 1999 which are incorporated herein by
reference, Deloitte & Touche have applied limited procedures in accordance with
professional standards for a review of such information. However, as stated in
their report included in Bank United Corp.'s Quarterly Report on Form 10-Q for
the quarters ended December 31, 1998 and March 31, 1999 and incorporated by
reference herein, they did not audit and they do not express an opinion on that
interim financial information. Accordingly, the degree of reliance on their
reports on such information should be restricted in light of the limited nature
of the review procedures applied. Deloitte & Touche are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim financial information because those reports are
not "reports" or a "part" of the registration statement prepared or
certified by an accountant within the meaning of Sections 7 and 11 of the Act.
FORWARD-LOOKING INFORMATION
Statements and financial discussion and analysis contained in this
prospectus that are not historical facts are forward-looking statements made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. Forward-looking statements involve a number of risks and
uncertainties. The important factors that could cause actual results to differ
materially from the forward-looking statements include, without limitation:
INTEREST RATES AND ECONOMY
o Changes in interest rates and economic conditions;
o changes in the levels of loan prepayments and the resulting effects on
the value of our loan and servicing portfolios and the related hedging
instruments;
36
<PAGE>
o changes in local economic and business conditions adversely affecting
our borrowers and their ability to repay their loans according to
their terms or impacting the value of the related collateral; and
o changes in local economic and business conditions adversely affecting
our customers other than borrowers and their ability to transact
profitable business with us.
COMPETITION AND PRODUCT AVAILABILITY
o Increased competition for deposits and loans adversely affecting rates
and terms;
o changes in availability of loans originated by other financial
institutions or our ability to purchase such loans on favorable terms;
o changes in availability of single family servicing rights in the
marketplace and our ability to purchase such assets on favorable
terms; and
o various strategic alternatives that we consider from time to time,
including acquisitions of other depository institutions, their assets
or their liabilities on terms favorable to us, and our successful
integration of any such acquisitions.
CHANGE IN OUR ASSET MIX
o Increased credit risk in our assets and increased operating risk
caused by an increase in commercial and consumer loans and a decrease
in single family mortgage loans as a percentage of the total loan
portfolio.
LIQUIDITY AND CAPITAL
o Changes in the availability of funds resulting in increased costs or
reduced liquidity;
o changes in our ability to pay dividends on our common stock; and
o increased asset levels and changes in the composition of assets and
the resulting impact on the Bank's capital levels and regulatory
capital ratios.
SYSTEMS
o Our ability to acquire, operate and maintain cost effective and
efficient systems; and
o our ability to complete our project to assess and resolve any Year
2000 problems on time.
PERSONNEL
o The loss of senior management or operating personnel and the potential
inability to hire qualified personnel at reasonable compensation
levels.
REGULATORY, COMPLIANCE AND LEGAL
o Changes in applicable statutes and government regulations or their
interpretations;
o claims of our noncompliance with statutory and regulatory
requirements;
o claims with respect to representations and warranties made by us to
purchasers and insurers of mortgage loans and to purchasers of
mortgage servicing rights; and
o changes in the status of litigation to which we are a party.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333-75937) that we
filed with the Commission utilizing a "shelf" registration procedure. Under
this shelf procedure, we, the selling stockholders and Bank United Capital Trust
may, from time to time, sell any combination of the
37
<PAGE>
securities described in this prospectus in one or more offerings up to a total
offering price of $680 million.
This prospectus provides you with a general description of the securities
that we, the selling stockholders or Bank United Capital Trust may offer. We
will provide a prospectus supplement that will contain specific information
about the terms of each offering of securities. The prospectus supplement may
also add, update or change information contained in this prospectus. You should
read both this prospectus and any prospectus supplement together with the
additional information described under the heading "Where You Can Find More
Information" below.
You should rely only on the information provided in this prospectus and in
any prospectus supplement, including the information incorporated by reference.
We have not authorized anyone to provide you with different information. You
should not assume that the information in this prospectus, or any supplement to
this prospectus, is accurate at any date other than the date indicated on the
cover page of these documents.
We are not offering the securities in any state where the offer is not
permitted.
WHERE YOU CAN FIND MORE INFORMATION
The rules and regulations of the Commission allow us to omit some of the
information included in the registration statement from this prospectus. The
registration statement, including the attached exhibits and schedules, contains
additional relevant information about us and our securities.
In addition, we file reports, proxy statements and other information with
the Commission under the Securities Exchange Act of 1934. You may read and copy
this information at the following locations of the Commission:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois
60661-2511
You may obtain information on the operation of the Public Reference Room by
calling the Commission at 1-800-SEC-0330. The Commission also maintains an
Internet world wide web site that contains reports, proxy statements and other
information about issuers, like us, who file electronically with the Commission.
The address of that site is http://www.sec.gov.
The Commission allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you by
referring you to the other information we have filed with the Commission. The
information that we incorporate by reference is considered to be part of this
prospectus, and later information that we file with the Commission will
automatically update and supersede the information we've included in this
prospectus. We incorporate by reference the documents listed below:
o Our Annual Report on Form 10-K for the year ended September 30, 1998.
o Our Quarterly Reports on Form 10-Q for the quarters ended December 31,
1998 and March 31, 1999.
o Our Current Reports on Form 8-K filed on March 24, 1999 and April 2,
1999.
o The description of our Class A common stock contained in our Form 8-A
dated July 12, 1996.
o Our Proxy Statement for the Annual Meeting of Stockholders dated
February 10, 1999.
We also incorporate by reference any future filings we will make with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus but before the end of the offering of the securities
described in this prospectus.
38
<PAGE>
You may request a free copy of these filings by writing or calling us at
the following address:
INVESTOR RELATIONS
BANK UNITED CORP.
3200 SOUTHWEST FREEWAY
SUITE 3100
HOUSTON, TX 77027
(713) 543-6926
This prospectus does not contain or incorporate by reference any separate
financial statements of Bank United Capital Trust. We do not believe that these
financial statements are material to prospective holders of the trust preferred
securities because:
o all of the voting securities of Bank United Capital Trust will be
owned, directly or indirectly, by us, and we are a reporting company
under the Securities Exchange Act of 1934;
o Bank United Capital Trust has no independent operations but exists for
the sole purpose of issuing securities representing undivided
beneficial ownership interests in its assets and investing these
proceeds in the junior subordinated debt securities issued by us; and
o the obligations of Bank United Capital Trust under the trust preferred
securities are guaranteed by us to the extent described in this
prospectus.
Bank United Capital Trust is not currently subject to the informational
reporting requirements of the Securities Exchange Act of 1934. Bank United
Capital Trust will become subject to such requirements upon the effectiveness of
the registration statement of which this prospectus is a part, although we and
Bank United Capital Trust intend to seek and expect to receive exemptions from
those reporting requirements from the Commission.
39
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts except the
Commission registration fee are estimated.
ITEM AMOUNT
-------- --------
Registration fee..................... $189,040
Blue Sky fees and expenses........... 10,000
Printing and engraving expenses...... 50,000
Legal fees and expenses.............. 30,000
Accounting fees and expenses......... 25,000
Transfer Agent and Registrar fees.... 10,000
Miscellaneous........................ 10,000
--------
Total........................... $324,040
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Bank United Corp. is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "DGCL") contains detailed
provisions on indemnification of directors and officers of a Delaware
corporation against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with certain litigation.
Bank United Corp.'s Restated Certificate of Incorporation (the
"Certificate of Incorporation") provides that a director of Bank United Corp.
will not be personally liable to Bank United Corp. or its stockholders for
monetary damages for breach of fiduciary duty as a director, except, if required
by the DGCL as amended from time to time, for liability (i) for any breach of
the director's duty of loyalty to Bank United Corp. or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, which
concerns unlawful payments of dividends, stock purchases or redemptions, or (iv)
for any transaction from which the director derived an improper personal
benefit. Neither the amendment nor repeal of such provision will eliminate or
reduce the effect of such provision in respect of any matter occurring, or any
cause of action, suit or claim that, but for such provision, would accrue or
arise prior to such amendment or repeal.
While the Certificate of Incorporation provides directors with protection
from awards for monetary damages for breaches of their duty of care, it does not
eliminate such duty. Accordingly, the Certificate of Incorporation will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of his or her duty of care.
The Certificate of Incorporation provides that each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director or officer of Bank
United Corp. or is or was serving at the request of Bank United Corp. as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, will be
indemnified and held harmless by Bank United Corp. to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
Bank United Corp. to provide
II-1
<PAGE>
broader indemnification rights than said law permitted Bank United Corp. to
provide prior to such amendment), against all expense, liability and loss
reasonably incurred or suffered by such person in connection therewith. Such
right to indemnification includes the right to have Bank United Corp. pay the
expenses incurred in defending any such proceeding in advance of its final
disposition, subject to the provisions of the DGCL. Such rights are not
exclusive of any other right which any person may have or thereafter acquire
under any statute, provision of the Certificate of Incorporation, By-Laws,
agreement, vote of stockholders or disinterested directors or otherwise. No
repeal or modification of such provision will in any way diminish or adversely
affect the rights of any director, officer, employee or agent of Bank United
Corp. thereunder in respect of any occurrence or matter arising prior to any
such repeal or modification. The Certificate of Incorporation also specifically
authorizes the Registrant to maintain insurance and to grant similar
indemnification rights to employees or agents of the Registrant.
Article 4 of the Amended and Restated Declaration of Trust of Bank United
Capital Trust (the "Amended Declaration") provides for the indemnification by
Bank United Corp. of the Property Trustee and the Delaware Trustee. Article 9 of
the Amended Declaration provides for the indemnification of the Regular Trustee,
the Property Trustee and the Delaware Trustee, and their affiliates, by Bank
United Capital Trust.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS AND SCHEDULES
(a) EXHIBITS
The following Exhibits are filed herewith or incorporated herein by
reference:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
------------- --------------------------
1.1* -- Form of Underwriting Agreement
relating to Class A common stock.
1.2* -- Form of Underwriting Agreement
relating to trust preferred
securities.
3.1 -- Form of Restated Certificate of
Incorporation of Bank United Corp.,
as amended (incorporated by reference
to Exhibit 3.1 to Form S-1,
Registration No. 333-06229).
3.2 -- Form of By-Laws of Bank United Corp.
(incorporated by reference to Exhibit
3.2 to Form S-1, Registration No.
333-06229).
4.1 -- Form of Class A Common Stock
(incorporated by reference to Form
8-A filed July 15, 1996).
4.2* -- Form of certificate of designation
with respect to preferred stock.
4.3* -- Form of Deposit Agreement.
4.4* -- Form of Depositary Receipt (included
in Exhibit 4.3).
4.5 -- Form of Amended and Restated
Declaration of Trust of Bank United
Capital Trust.
4.6** -- Certificate of Trust of Bank United
Capital Trust.
4.7 -- Form of junior subordinated indenture
between Bank United Corp. and Bank of
New York, Indenture Trustee.
4.8 -- Form of trust preferred securities
guarantee between Bank United Corp.
and Bank of New York, Guarantee
Trustee.
4.9 -- Form of certificate of junior
subordinated debt securities
(included in Exhibit 4.7 above).
4.10 -- Form of certificate of trust
preferred securities of Bank United
Capital Trust (included in Exhibit
4.5 above).
5.1* -- Opinion of Wachtell, Lipton, Rosen &
Katz.
5.4* -- Opinion of Richards, Layton & Finger,
special Delaware counsel, as to
legality of the securities to be
issued by Bank United Capital Trust.
II-2
<PAGE>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
------------- -------------------------
8.1* -- Opinion of Wachtell, Lipton, Rosen &
Katz as to certain federal income tax
matters.
12.1 -- Computation of ratio of earnings to
fixed charges and earnings to
combined fixed charges and preferred
dividends.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Wachtell, Lipton, Rosen &
Katz (included in Exhibit 5.1).
23.5 -- Consent of Richards, Layton & Finger
(included in Exhibit 5.4).
23.6 -- Consent of Wachtell, Lipton, Rosen &
Katz (included in Exhibit 8.1).
24.1** -- Power of Attorney.
25.1 -- Form T-1 Statement of Eligibility of
Bank of New York, Delaware to act as
Property Trustee and Delaware Trustee
under the Amended and Restated
Declaration of Trust of Bank United
Capital Trust.
25.2 -- Form T-1 Statement of Eligibility of
Bank of New York to act as Indenture
Trustee under the junior subordinated
indenture.
25.3 -- Form T-1 Statement of Eligibility of
Bank of New York to act as Guarantee
Trustee under the trust preferred
securities guarantee of Bank United
Capital Trust.
- ------------
* To be filed by amendment or by filing of a Form 8-K subsequently incorporated
by reference.
** Previously filed.
(b) FINANCIAL STATEMENTS AND SCHEDULES
Either not applicable or shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement (notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum total offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement); and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time will be
deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
(4) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by each Registrant pursuant to Rule
424(b)(1) or (4) or 497 (h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was
declared effective. For the purpose of determining any liability under
the Securities Act, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE
offering thereof.
(5) For purposes of determining any liability under the Securities Act,
each filing of the each Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted as to directors, officers and controlling persons of each of
the Registrants pursuant to the DGCL, the organizational documents of the
Registrants, indemnification agreements entered into between Registrants and
their officers, directors or trustees, or otherwise, each Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred or
paid by a director, officer, trustee or controlling person of the Registrants in
the successful defense of any action, suit, or proceeding) is asserted by such
director, officer, trustee or controlling person in connection with the
securities being registered, each Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, each of the undersigned
Registrants certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Registration Statement on Form S-3 or
amendment thereto and has duly caused this Registration Statement or amendment
thereto to be signed on its behalf by the undersigned, thereunto duly
authorized, in Houston, Texas, on May 27, 1999.
BANK UNITED CAPITAL TRUST
(Registrant)
By: BANK UNITED CORP., as Sponsor
By: /s/ JONATHON K. HEFFRON
Name: Jonathon K. Heffron
Title: Chief Operating Officer
BANK UNITED CORP.
(Registrant)
By: /s/ ANTHONY J. NOCELLA
Name: Anthony J. Nocella
Title: Vice Chairman
II-5
<PAGE>
SIGNATURES -- (CONTINUED)
Pursuant to the requirements of the Securities Act, this Registration
Statement or amendment thereto has been signed by the following persons in the
capacities indicated on May 27, 1999.
SIGNATURE TITLE
------------- ----------
/s/ BARRY C. BURKHOLDER Principal Executive Officer; Director
Barry C. Burkholder
* Principal Financial and Accounting
Anthony J. Nocella Officer; Director
* Director
Lewis S. Ranieri
* Director
Lawrence Chimerine
* Director
David M. Golush
* Director
Paul M. Horvitz
* Director
Alan E. Master
* Director
Salvatore A. Ranieri
* Director
Scott A. Shay
* Director
Patricia A. Sloan
* Director
Michael S. Stevens
* Director
Kendrick R. Wilson III
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<PAGE>
* THE UNDERSIGNED, BY SIGNING HIS NAME HERETO, DOES HEREBY SIGN THIS
REGISTRATION STATEMENT ON BEHALF OF EACH OF THE ABOVE-INDICATED DIRECTORS AND
OFFICERS OF THE REGISTRANT PURSUANT TO A POWER OF ATTORNEY SIGNED BY SUCH
DIRECTORS AND OFFICERS.
/s/ BARRY C. BURKHOLDER
BARRY C. BURKHOLDER
AS ATTORNEY-IN-FACT
II-7
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
----------- -------------
1.1* -- Form of Underwriting Agreement
relating to Class A common stock.
1.2* -- Form of Underwriting Agreement
relating to trust preferred securities.
3.1 -- Form of Restated Certificate of
Incorporation of Bank United Corp.,
as amended (incorporated by reference
to Exhibit 3.1 to Form S-1,
Registration No. 333-06229).
3.2 -- Form of By-Laws of Bank United Corp.
(incorporated by reference to Exhibit
3.2 to Form S-1, Registration No. 333-06229).
4.1 -- Form of Class A Common Stock
(incorporated by reference to Form
8-A filed July 15, 1996).
4.2* -- Form of certificate of designation
with respect to preferred stock.
4.3* -- Form of Deposit Agreement.
4.4* -- Form of Depositary Receipt (included
in Exhibit 4.3).
4.5 -- Form of Amended and Restated
Declaration of Trust of Bank United
Capital Trust.
4.6** -- Certificate of Trust of Bank United
Capital Trust.
4.7 -- Form of junior subordinated indenture
between Bank United Corp. and Bank of
New York, Indenture Trustee.
4.8 -- Form of trust preferred securities
guarantee between Bank United Corp.
and Bank of New York, Guarantee Trustee.
4.9 -- Form of certificate of junior
subordinated debt securities
(included in Exhibit 4.7 above).
4.10 -- Form of certificate of trust
preferred securities of Bank United
Capital Trust (included in Exhibit 4.5 above).
5.1* -- Opinion of Wachtell, Lipton, Rosen & Katz.
5.4* -- Opinion of Richards, Layton & Finger,
special Delaware counsel, as to
legality of the securities to be
issued by Bank United Capital Trust.
8.1* -- Opinion of Wachtell, Lipton, Rosen &
Katz as to certain federal income tax matters.
12.1 -- Computation of ratio of earnings to
fixed charges and earnings to
combined fixed charges and preferred dividends.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Wachtell, Lipton, Rosen &
Katz (included in Exhibit 5.1).
23.5 -- Consent of Richards, Layton & Finger
(included in Exhibit 5.4).
23.6 -- Consent of Wachtell, Lipton, Rosen &
Katz (included in Exhibit 8.1).
24.1** -- Power of Attorney
25.1 -- Form T-1 Statement of Eligibility of
Bank of New York, Delaware to act as
Property Trustee and Delaware
Trustee under the Amended and
Restated Declaration of Trust of Bank
United Capital Trust.
25.2 -- Form T-1 Statement of Eligibility of
Bank of New York to act as Indenture
Trustee under the junior subordinated indenture.
25.3 -- Form T-1 Statement of Eligibility of
Bank of New York to act as Guarantee
Trustee under the trust preferred
securities guarantee of Bank United
Capital Trust.
- ------------
* To be filed by amendement or by filing of a Form 8-K subsequently
incorporated by reference
** Previously filed.
EXHIBIT 4.5
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of __________ __, ____
By and Among
BANK UNITED CORP.,
as Sponsor
_______________,
as Regular Trustee
_______________,
as Regular Trustee
_______________,
as Regular Trustee
BANK OF NEW YORK, DELAWARE,
as Property Trustee
And
BANK OF NEW YORK, DELAWARE,
as Delaware Trustee
<PAGE>
CROSS REFERENCE TABLE*
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED AGREEMENT
- ---------------- ----------
310(A).....................................................................6.3
310(B)..........................................................6.3(C); 6.3(D)
310(C)............................................................INAPPLICABLE
311(A)..................................................................2.2(B)
311(B)..................................................................2.2(B)
311(C)............................................................INAPPLICABLE
312(A)..................................................................2.2(A)
312(B)..................................................................2.2(B)
312(C)............................................................INAPPLICABLE
313(A).....................................................................2.3
313(B).....................................................................2.3
313(C).....................................................................2.3
313(D).....................................................................2.3
314(A).....................................................................2.4
314(B)............................................................INAPPLICABLE
314(C).....................................................................2.5
314(D)............................................................INAPPLICABLE
314(E).....................................................................2.5
314(F)............................................................INAPPLICABLE
315(A).........................................................3.9(B); 3.10(A)
315(B)..................................................................2.7(A)
315(C)..................................................................3.9(A)
315(D)..................................................................3.9(B)
316(A).....................................................2.6; 7.5(B); 7.6(C)
316(B)............................................................INAPPLICABLE
316(C)............................................................INAPPLICABLE
317(A)....................................................................3.16
317(B)............................................................INAPPLICABLE
318(A)..................................................................2.1(C)
- --------
* THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THE AGREEMENT AND
SHALL NOT HAVE ANY BEARING UPON THE INTERPRETATION OF ANY OF ITS TERMS OR
PROVISIONS.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS............................1
AFFILIATE........................................................2
AUTHORIZED OFFICER...............................................2
BENEFICIAL OWNERS................................................2
BUSINESS DAY.....................................................2
BUSINESS TRUST ACT...............................................2
CERTIFICATE......................................................2
CERTIFICATE OF TRUST.............................................2
CLOSING DATE.....................................................3
CODE ...........................................................3
COMMISSION.......................................................3
COMMON SECURITY..................................................3
COMMON SECURITY CERTIFICATE......................................3
COMMON SECURITIES HOLDER.........................................3
CORPORATE TRUST OFFICE...........................................3
COVERED PERSON...................................................3
DEPOSITARY.......................................................3
DEPOSITARY PARTICIPANT...........................................3
DIRECT ACTION....................................................3
DISTRIBUTION.....................................................3
EXCHANGE ACT.....................................................3
FIDUCIARY INDEMNIFIED PERSON.....................................4
FISCAL YEAR......................................................4
GLOBAL SECURITY..................................................4
GUARANTEE........................................................4
HOLDER...........................................................4
INDEMNIFIED PERSON...............................................4
INDENTURE........................................................4
INDENTURE EVENT OF DEFAULT.......................................4
INDENTURE TRUSTEE................................................4
INDENTURE TRUSTEE................................................4
INVESTMENT COMPANY...............................................4
INVESTMENT COMPANY ACT...........................................4
INVESTMENT COMPANY EVENT.........................................4
ISSUER...........................................................5
JUNIOR SUBORDINATED DEBT SECURITIES..............................5
JUNIOR SUBORDINATED DEBT-SECURITIES ISSUER INDEMNIFIED PERSON....5
i
<PAGE>
PAGE
LEGAL ACTION.....................................................5
LIST OF HOLDERS..................................................5
MAJORITY IN LIQUIDATION AMOUNT...................................5
NEW YORK STOCK EXCHANGE..........................................5
OFFICERS' CERTIFICATE............................................5
PAYING AGENT.....................................................6
PAYMENT AMOUNT...................................................6
PREFERRED SECURITY...............................................6
PREFERRED SECURITY CERTIFICATE...................................6
PERSON...........................................................6
PROPERTY ACCOUNT.................................................6
PROPERTY TRUSTEE.................................................6
PRO RATA.........................................................6
QUORUM...........................................................6
REDEMPTION/DISTRIBUTION NOTICE...................................6
REDEMPTION PRICE.................................................6
REGULAR TRUSTEE..................................................7
REGULATORY CAPITAL EVENT.........................................7
RELATED PARTY....................................................7
RESPONSIBLE OFFICER..............................................7
SECURITIES.......................................................7
SECURITIES ACT...................................................7
SPECIAL EVENT....................................................7
SPONSOR..........................................................7
SUCCESSOR DELAWARE TRUSTEE.......................................7
SUCCESSOR ENTITY.................................................7
SUCCESSOR PROPERTY TRUSTEE.......................................8
SUCCESSOR SECURITY...............................................8
SUPER MAJORITY...................................................8
TAX EVENT........................................................8
10% IN LIQUIDATION AMOUNT........................................8
TREASURY REGULATIONS.............................................8
TRUST ENFORCEMENT EVENT..........................................8
TRUST INDENTURE ACT..............................................8
TRUSTEE..........................................................8
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION..........................9
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES............................9
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE..........................10
SECTION 2.4 PERIODIC REPORTS TO THE PROPERTY TRUSTEE.................10
ii
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SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.........10
SECTION 2.6 TRUST ENFORCEMENT EVENTS; WAIVER.........................10
SECTION 2.7 TRUST ENFORCEMENT EVENT; NOTICE..........................12
ARTICLE 3
ORGANIZATION
SECTION 3.1 NAME AND ORGANIZATION....................................12
SECTION 3.2 OFFICE...................................................13
SECTION 3.3 PURPOSE..................................................13
SECTION 3.4 AUTHORITY................................................13
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST...........................14
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES................14
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.....17
SECTION 3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE................18
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY
TRUSTEE.................................................20
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE......................22
SECTION 3.11 DELAWARE TRUSTEE........................................25
SECTION 3.12 EXECUTION OF DOCUMENTS..................................25
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..25
SECTION 3.14 DURATION OF TRUST.......................................25
SECTION 3.15 MERGERS.................................................25
SECTION 3.16 PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM...............27
ARTICLE 4
SPONSOR
SECTION 4.1 RESPONSIBILITIES OF THE SPONSOR..........................28
SECTION 4.2 INDEMNIFICATION AND FEES AND EXPENSES OF THE TRUSTEES....29
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 ISSUER'S PURCHASE OF COMMON SECURITIES...................29
SECTION 5.2 COVENANTS OF THE COMMON SECURITIES HOLDER................29
ARTICLE 6
TRUSTEES
SECTION 6.1 NUMBER OF TRUSTEES.......................................30
SECTION 6.2 DELAWARE TRUSTEE; ELIGIBILITY............................30
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SECTION 6.3 PROPERTY TRUSTEE; ELIGIBILITY............................30
SECTION 6.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE
GENERALLY...............................................31
SECTION 6.5 INITIAL REGULAR TRUSTEES.................................31
SECTION 6.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.........32
SECTION 6.7 VACANCIES AMONG TRUSTEES.................................33
SECTION 6.8 EFFECT OF VACANCIES......................................33
SECTION 6.9 MEETINGS.................................................34
SECTION 6.10 DELEGATION OF POWER.....................................34
SECTION 6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...............................................34
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES..................35
SECTION 7.2 DISTRIBUTIONS............................................37
SECTION 7.3 REDEMPTION OF SECURITIES.................................38
SECTION 7.4 REDEMPTION PROCEDURES....................................39
SECTION 7.5 VOTING RIGHTS OF PREFERRED SECURITIES....................40
SECTION 7.6 VOTING RIGHTS OF COMMON SECURITIES.......................42
SECTION 7.7 PAYING AGENT.............................................43
SECTION 7.8 LISTING..................................................44
SECTION 7.9 TRANSFER OF SECURITIES...................................44
SECTION 7.10 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.......45
SECTION 7.11 DEEMED SECURITY HOLDERS..................................46
SECTION 7.12 GLOBAL SECURITIES.......................................46
SECTION 7.13 OVER-ALLOTMENT OPTION...................................48
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 DISSOLUTION AND TERMINATION OF TRUST.....................49
SECTION 8.2 LIQUIDATION DISTRIBUTION UPON DISSOLUTION OF THE TRUST...50
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 LIABILITY................................................51
SECTION 9.2 EXCULPATION..............................................51
SECTION 9.3 FIDUCIARY DUTY...........................................52
SECTION 9.4 INDEMNIFICATION..........................................53
SECTION 9.5 OUTSIDE BUSINESSES.......................................56
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ARTICLE 10
ACCOUNTING
SECTION 10.1 FISCAL YEAR.............................................56
SECTION 10.2 CERTAIN ACCOUNTING MATTERS..............................57
SECTION 10.3 BANKING.................................................57
SECTION 10.4 WITHHOLDING.............................................57
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 AMENDMENTS..............................................58
SECTION 11.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY
WRITTEN CONSENT........................................60
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE..62
SECTION 12.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE TRUSTEE..63
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 NOTICES.................................................63
SECTION 13.2 GOVERNING LAW...........................................64
SECTION 13.3 INTENTION OF THE PARTIES................................64
SECTION 13.4 HEADINGS................................................65
SECTION 13.5 SUCCESSORS AND ASSIGNS..................................65
SECTION 13.6 PARTIAL ENFORCEABILITY..................................65
SECTION 13.7 COUNTERPARTS............................................65
EXHIBITS
EXHIBIT A FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT B FORM OF COMMON SECURITY CERTIFICATE
v
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
This AMENDED AND RESTATED DECLARATION OF TRUST (the
"Declaration"), dated as of , , is entered into by and among BANK UNITED CORP.,
a Delaware corporation, as sponsor (the "Sponsor"), _____________,
________________ and _______________, as the initial regular trustees
(collectively, the "Regular Trustees"), Bank of New York, Delaware, a Delaware
corporation, as the initial property trustee (the "Property Trustee") and the
initial Delaware trustee (the "Delaware Trustee" and, together with the Regular
Trustees and the Property Trustee, the "Trustees"), not in their individual
capacities but solely as Trustees, and the holders, from time to time, of
undivided beneficial ownership interests in the Trust to be issued pursuant to
this Declaration.
RECITALS
WHEREAS, the Trustees and the Sponsor established Bank United
Capital Trust (the "Trust"), a business trust under the Business Trust Act (as
defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of April 7, 1999, (the "Original Declaration") and
a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on April 7, 1999;
WHEREAS, the sole purpose of the Trust shall be to issue and sell
certain securities representing undivided beneficial ownership interests in the
assets of the Trust, to invest the proceeds from such sales in the Debentures
issued by the Issuer and to engage in only those activities necessary or
incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and restate
each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in
the preamble above have the meanings assigned to them in this Section 1.1;
<PAGE>
2
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections,
Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits
to, this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term defined in
the Trust Indenture Act has the same meaning when used in this Declaration; and
(f) a reference to the singular includes the plural and vice versa
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable.
(g) the following terms have the following meanings:
"AFFILIATE" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"APPLICABLE REGULATORY AUTHORITIES" means the Office of Thrift
Supervision, or any successor thereto, or any other regulatory authority of the
United States having jurisdiction over the Sponsor.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized
to bind such Person.
"BENEFICIAL OWNERS" means, for Preferred Securities represented by a
Global Security, the Person who acquires an interest in the Preferred Securities
which is reflected on the records of the Depositary through the Depositary
Participants.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that
is not a day on which banking institutions in the Borough of Manhattan, The City
of New York are authorized or required by law, regulation or executive order to
close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"CERTIFICATE" means a Common Security Certificate or a Preferred
Security Certificate.
"CERTIFICATE OF TRUST" has the meaning specified in the Recitals
hereto.
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3
"CLOSING DATE" means the date on which the Preferred Securities are
issued and sold, PROVIDED that if the Trust and the Sponsor grant the
underwriters or initial purchasers an option to purchase an additional amount of
Preferred Securities, pursuant to Section 7.13(a), including for the purpose of
covering over-allotments, pursuant to the underwriting agreement or purchase
agreement, as the case may be, and such option is so exercised, then the term
"Closing Date" shall mean such initial or second closing date, as the context
requires.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"COMMISSION" means the Securities and Exchange Commission or any
successor thereto.
"COMMON SECURITY" has the meaning specified in Section 7.1
"COMMON SECURITY CERTIFICATE" means a definitive certificate in
fully registered form representing a Common Security, substantially in the form
of Exhibit B hereto.
"COMMON SECURITIES HOLDER" means Bank United Corp., in its capacity
as purchaser and holder of all of the Common Securities issued by the Trust.
"CORPORATE TRUST OFFICE" means the principal office of the Property
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Declaration is
located at White Clay Center, Route 273, Newark, Delaware 19711, Attention:
[Corporate Trust Services Division].
"COVERED PERSON" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder.
"DEPOSITARY" means, with respect to Securities issuable in whole or
in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities.
"DEPOSITARY PARTICIPANT" means a member of, or participant in, the
Depositary.
"DIRECT ACTION" has the meaning specified in Section 3.8(e).
"DISTRIBUTION" means a distribution payable to Holders of Securities
in accordance with Section 7.2.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
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4
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set forth in Section
9.4(b).
"FISCAL YEAR" has the meaning specified in Section 10.1.
"GLOBAL SECURITY" means a fully registered, global Preferred
Security Certificate.
"GUARANTEE" means the Guarantee Agreement, dated as of ________ __,
____, of the Sponsor in respect of the Securities.
"HOLDER" means any holder of Securities, as registered on the books
and records of the Trust; provided, however, that in determining whether the
Holders of the requisite liquidation amount of Preferred Securities have voted
on any matter provided for in this Declaration, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Preferred
Securities remain in the form of one or more Global Securities and if the
Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Preferred Securities are credited on the record date, the term
"Holders" shall mean such Depositary Participants acting at the direction of the
Beneficial Owners.
"INDEMNIFIED PERSON" means an Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"INDENTURE" means the Indenture, dated as of , 1999, between the
Issuer and Bank of New York, as Trustee, pursuant to which the Debentures are to
be issued.
"INDENTURE EVENT OF DEFAULT" has the meaning given to the term
"Event of Default" in the Indenture.
"INDENTURE TRUSTEE" means Bank of New York, in its capacity as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"INDENTURE TRUSTEE" has the meaning specified in Section 6.2.
"INVESTMENT COMPANY" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" means the receipt by the Trust of an
opinion of a nationally recognized independent counsel, to the effect that, as a
result of the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
<PAGE>
5
considered an "investment company" that is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after the Closing Date.
"ISSUER" means Bank United Corp., in its capacity as issuer of the
Junior Subordinated Debt Securities under the Indenture.
"JUNIOR SUBORDINATED DEBT SECURITIES" means the junior subordinated
debt securities to be issued by the Issuer under the Indenture and held by the
Property Trustee.
"JUNIOR SUBORDINATED DEBT-SECURITIES ISSUER INDEMNIFIED PERSON"
means (a) any Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Regular Trustee or any Affiliate thereof; or (d) any officer,
employee or agent of the Trust or its Affiliates.
"LEGAL ACTION" has the meaning specified in Section 3.6(g).
"LIST OF HOLDERS" has the meaning specified in Section 2.2(a).
"MAJORITY IN LIQUIDATION AMOUNT" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"NEW YORK STOCK EXCHANGE" means the New York Stock Exchange, Inc. or
any successor thereto.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers of such
Person. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
on behalf of such
<PAGE>
6
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer
acting on behalf of such Person, such condition or covenant has been complied
with; provided, that the term "Officers' Certificate", when used with reference
to Regular Trustees who are natural persons shall mean a certificate signed by
two or more of the Regular Trustees which otherwise satisfies the foregoing
requirements.
"OPTION" has the meaning specified in Section 7.13(a).
"PAYING AGENT" has the meaning specified in Section 3.8(h).
"PAYMENT AMOUNT" has the meaning specified in Section 7.2(c).
"PREFERRED SECURITY" has the meaning specified in Section 7.1.
"PREFERRED SECURITY CERTIFICATE" means a definitive certificate in
fully registered form representing a Preferred Security, substantially in the
form of Exhibit A.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PROPERTY ACCOUNT" has the meaning specified in Section 3.8(c).
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"PRO RATA" means pro rata to each Holder of Securities according to
the aggregate liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities outstanding.
"QUORUM" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"REDEMPTION/DISTRIBUTION NOTICE" has the meaning specified in
Section 7.4(a) hereto.
"REDEMPTION PRICE" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the Issuer to
repay or redeem, in whole or in part, the Debentures held by the Trust plus an
amount equal to accumulated and unpaid Distributions on such Securities through
the date of their redemption or (ii) such lesser amount as will be received by
the Trust in respect of the Debentures so repaid or redeemed.
<PAGE>
7
"REGULAR TRUSTEE" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"REGULATORY CAPITAL EVENT" means the receipt by the Trust of an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Applicable Regulatory
Authorities or (b) any official administrative pronouncement or judicial
decision for interpreting or applying such laws or regulations which amendment
or change is effective or such pronouncement or decision is announced on or
after the date of original issuance of the Preferred Securities, the Preferred
Securities do not constitute, or within 90 days of the date thereof, will not
constitute Tier 1 capital (or its then equivalent) as that concept is used in
the guidelines or regulations issued by the Board of Governors of the Federal
Reserve System; PROVIDED, HOWEVER, that the distribution of the Securities in
connection with the liquidation of the Trust by the Issuer shall not in and of
itself constitute a Regulatory Capital Event unless such liquidation shall have
occurred in connection with a Tax Event or an Investment Company Event.
"RELATED PARTY" means, with respect to the Sponsor, any direct or
wholly owned subsidiary of the Sponsor or any Person that owns, directly or
indirectly, 100% of the outstanding voting securities of the Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the Property Trustee,
any officer with direct responsibility for the administration of this
Declaration and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"SECURITIES" means the Common Securities and the Preferred
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"SPECIAL EVENT" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event.
"SPONSOR" means Bank United Corp., a Delaware corporation, or any
successor entity in a merger, consolidation, amalgamation or replacement by or
conveyance, transfer or lease of its properties substantially as an entirety, in
its capacity as sponsor of the Trust.
"SUCCESSOR DELAWARE TRUSTEE" has the meaning specified in Section
6.6(b).
"SUCCESSOR ENTITY" has the meaning specified in Section 3.15(b)(i).
"SUCCESSOR PROPERTY TRUSTEE" has the meaning specified in Section
6.6(b).
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8
"SUCCESSOR SECURITY" has the meaning specified in Section
3.15(b)(i)b.
"SUPER MAJORITY" has the meaning specified in Section 2.6(a)(ii).
"TAX EVENT" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters, to the effect that, as a
result of (a) any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any official
administrative pronouncement, action or judicial decision interpreting or
applying such laws or regulations, which amendment or change becomes effective
or proposed change, pronouncement, action or decision is announced on or after
the Closing Date, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to the United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Issuer on the Debentures is not, or
within 90 days of the date of such opinion will not be, deductible, in whole or
in part, by the Issuer for United States federal income tax purposes, or (iii)
the Trust is, or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"10% IN LIQUIDATION AMOUNT" means, except as provided in the terms
of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"TREASURY REGULATIONS" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"TRUST ENFORCEMENT EVENT" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
<PAGE>
9
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial ownership interests in the
assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i), except while the Preferred
Securities are represented by one or more Global Securities, at least five
Business Days prior to the date for payment of Distributions, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") as of the record date
relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Property
Trustee for a List of Holders, as of a date no more than 15 days before such
List of Holders is given to the Property Trustee; provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under,
and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
<PAGE>
10
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the year
of the first anniversary of the issuance of the Preferred Securities), the
Property Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Preferred Securities, waive any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust
Enforcement Event under the Declaration shall also not
be waivable; or
(ii) requires the consent or vote of the Holders of greater
than a majority in principal amount of the Debentures (a
"Super Majority") to be waived under the Indenture, the
related Trust Enforcement Event under the Declaration
may only be waived by the vote or written consent of the
Holders of at least the proportion in liquidation amount
of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of
the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act
<PAGE>
11
is hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Upon such waiver, any such default shall
cease to exist, and any Trust Enforcement Event with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Declaration and the Preferred Securities, but no such waiver
shall extend to any subsequent or other Trust Enforcement Event with respect to
the Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of a Trust Enforcement Event with
respect to the Preferred Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Trust Enforcement Event with
respect to the Common Securities for all purposes of this Declaration without
any further act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have
waived such Trust Enforcement Event under the
Declaration as provided below in this Section 2.6(b),
the Trust Enforcement Event under the Declaration shall
also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such
Trust Enforcement Event under the Declaration as
provided below in this Section 2.6(b), the Trust
Enforcement Event under the Declaration may only be
waived by the vote or written consent of the Holders of
at least the proportion in liquidation amount of the
Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the
Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver or other elimination, any such default shall cease to
exist and any Trust Enforcement Event with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every
<PAGE>
12
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other Trust Enforcement Event with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Trust Enforcement Event with respect to the
Preferred Securities under this Declaration. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture
Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of a Trust Enforcement Event actually known to a Responsible Officer of the
Property Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all such defaults with respect to the Securities,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Indenture Event of Default, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein); provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible
Officer of the Property Trustee charged with the
administration of this Declaration shall have actual
knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "Bank United Capital Trust" as
such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
<PAGE>
13
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Bank United
Corp., 3200 Southwest Freeway, Suite 2600, Houston, Texas 77027. On 10 Business
Days' written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee, the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the gross proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified as a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor,
the Holders of the Preferred Securities or Common Securities or the Preferred
Securities Beneficial Owners will take any position for United States federal
income tax purposes which is contrary to the classification of the Trust as a
grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6(b), provided, that the registration statements referred
to in Section 3.6(b)(i), including any amendments thereto, shall be signed by or
on behalf of a majority of the Regular Trustees; and
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14
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Account or as otherwise provided in this Declaration, legal title
to all assets of the Trust shall be vested in the Trust. The Holders shall not
have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial ownership interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Preferred Securities and
the Common Securities in the manner specified in Section 7.1 and issue and sell
the Preferred Securities and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one series
of Preferred Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other
national stock exchange or automated quotation system
for listing of any Preferred Securities, the Guarantee
and the Debentures;
(ii) execute and file with the Commission one or more
registration statements on the applicable forms prepared
by the Sponsor, including any amendments thereto,
pertaining to the Preferred Securities, the Guarantee
and the Debentures;
(iii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be
necessary, in order to qualify or register all or part
of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such
Preferred Securities for sale; and
<PAGE>
15
(iv) negotiate the terms of and execute and enter into an
underwriting agreement and other related agreements
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders, of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
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16
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that
the Regular Trustees determine in their discretion to be necessary or desirable
in carrying out the purposes and functions of the Trust as set out in Section
3.3 or the activities of the Trust as set out in this Section 3.6, including,
but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified as a grantor trust
for United States federal income tax purposes; and
(iii) cooperating with the Issuer to ensure that the
Debentures will be treated as indebtedness of the Issuer
for United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust; and
(q) to execute and deliver all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Issuer.
<PAGE>
17
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and none of the Trustees (including the
Property Trustee) shall cause the Trust to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and none of the Trustees (including the Property Trustee) shall cause the Trust
to:
(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds
to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever
(except to the extent expressly authorized in this
Declaration or by the terms of the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other
than the Securities;
(viii) other than as provided in this Declaration or by the
terms of the Securities, (A) direct the time, method and
place of exercising any trust or power conferred upon
the Indenture Trustee with respect to the Junior
Subordinated Debt Securities, (B) waive any past default
that is waivable under the Indenture, (C) exercise any
right to rescind or annul any declaration that the
principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification
or termination of the Indenture or the Debentures where
such consent shall be required unless the Trust shall
have received an opinion of counsel to the effect that
such modification will not cause more than an
insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the
Investment Company Act, or the Trust will not be
classified as a grantor trust for United States federal
income tax purposes;
(ix) take any action inconsistent with the status of the
Trust as a grantor trust for United States federal
income tax purposes; or
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18
(x) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Junior Subordinated Debt Securities shall
be owned by and held of record in the name of the Property Trustee for the
benefit of the Trust and the Holders of the Securities. The right, title and
interest of the Property Trustee to the Debentures shall vest automatically in
each Person who may hereafter be appointed as Property Trustee in accordance
with Section 6.6. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Junior Subordinated Debt
Securities have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Junior Subordinated Debt Securities to the Regular Trustees or
to the Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of
and under the exclusive control of the Property Trustee
on behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the
Junior Subordinated Debt Securities held by the Property
Trustee, deposit such funds into the Property Account
and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the
Property Account in accordance with Section 7.2. Funds
in the Property Account shall be held uninvested until
disbursed in accordance with this Declaration. The
Property Account shall be an account that is maintained
with a banking institution the rating on whose long-term
unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally
recognized statistical rating organization", within the
meaning of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the
extent the Junior Subordinated Debt Securities are
redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as so
directed and as shall be necessary or appropriate to
effect the distribution of the Junior Subordinated Debt
Securities to Holders of Securities upon the occurrence
of a Special Event.
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19
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
PROVIDED, HOWEVER, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Issuer to pay
interest, principal or other required payments on the Junior Subordinated Debt
Securities on the date such interest, principal or other required payments are
otherwise payable (or in the case of redemption, on the redemption date), then a
Holder of Preferred Securities may directly institute a proceeding against the
Issuer for enforcement of payment to such Holder of the principal of or interest
on Junior Subordinated Debt Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such Holder (a
"Direct Action") on or after the respective due date specified in the Junior
Subordinated Debt Securities. Notwithstanding anything to the contrary in this
Declaration or the Indenture, the Issuer shall have the right to set-off any
payment it is otherwise required to make under the Indenture in respect of any
Preferred Security to the extent the Issuer has heretofore made, or is currently
on the date of such payment making, a payment under the Guarantee relating to
such Preferred Security or under Section 5.8 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders
of Securities pursuant to the terms of the Securities;
or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section
6.6.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Junior Subordinated Debt
Securities under the Indenture and, if a Trust Enforcement Event actually known
to a Responsible Officer of the Property Trustee occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Junior Subordinated Debt Securities subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
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20
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust
Enforcement Events that may have occurred:
a. the duties and obligations of the Property Trustee
shall be determined solely by the express
provisions of this Declaration and the Property
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read
into this Declaration against the Property
Trustee; and
b. in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee
shall be under a duty
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21
to examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer
of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without
negligence, in good faith in accordance with the
direction of the Holders of not less than a Majority in
Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the
Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the
terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk
or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the
Debentures and the Property Account shall be to deal
with such property in a similar manner as the Property
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration
and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Junior Subordinated Debt Securities
or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds
held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by
law; and
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(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable
for any default or misconduct of the Regular Trustees or
the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(including any financing or continuation statement or
any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of
such counsel and experts with respect to legal matters
or advice within the scope of such experts' area of
expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance
with such advice or opinion, such counsel may be counsel
to the Sponsor or any of its Affiliates, and may include
any of its employees. The Property Trustee shall have
the right at any time to seek instructions
<PAGE>
23
concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it
in complying with such request or direction, including
such reasonable advances as may be requested by the
Property Trustee; provided that, nothing contained in
this Section 3.10(a) shall be taken to relieve the
Property Trustee, upon the occurrence of a Trust
Enforcement Event, of its obligation to exercise the
rights and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees
or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or
its agents alone shall be sufficient and effective to
perform any such action and no third party shall be
required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of
the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property
Trustee (i) may request instructions from
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24
the Holders of the Securities which instructions may
only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be
entitled to direct the Property Trustee under the terms
of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such
instructions are received, and (iii) shall be protected
in conclusively relying on or acting in or accordance
with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any
obligation to take any action that is discretionary
under the provisions of this Declaration;
(xii) the Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without
negligence, in good faith and reasonably believed by it
to be authorized or within the discretion, rights or
powers conferred upon it by this Declaration;
(xiii) without prejudice to any other rights available to the
Property Trustee under applicable law, when the Property
Trustee incurs expenses or renders services in
connection with a bankruptcy, such expenses (including
the fees and expenses of its counsel) and the
compensation for such services are intended to
constitute expenses of administration under any
bankruptcy law or law relating to creditors rights
generally;
(xiv) the Property Trustee shall not be charged with knowledge
of a Trust Enforcement Event unless a Responsible
Officer of the Property Trustee obtains actual knowledge
of such event or the Property Trustee receives written
notice of such event from Holders holding more than a
Majority in Liquidation Amount of the Preferred
Securities; and
(xv) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of such
Securities, and the signature of the Property Trustee or
one of its agents shall by itself be sufficient and
effective to perform any such action and no third party
shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with
any of the terms and provisions of this Declaration,
both of which shall be conclusively evidenced by the
Property Trustee's or its agent's taking such action.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which
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25
the Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Business Trust Act. In the event the Delaware Trustee shall at any time
be required to take any action or perform any duty hereunder with respect to the
Trust, the Delaware Trustee shall be entitled to all of the same rights as the
Property Trustee listed in Section 3.9(b) and Section 3.10.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6; provided that, the registration statements referred to in Section
3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of
a majority of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions of
Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the
consent of the Regular Trustees or, if there are more than two, a majority of
the Regular Trustees and without the consent of the Holders of the Securities,
the Delaware Trustee or the Property Trustee,
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26
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust
organized as such under the laws of any State; provided, that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
a. expressly assumes all of the obligations of the
Trust with respect to the Securities; or
b. substitutes for the Preferred Securities other
securities having substantially the same terms as
the Preferred Securities (the "Successor
Securities") so long as the Successor Securities
rank the same as the Preferred Securities rank in
priority with respect to Distributions and
payments upon liquidation, redemption and
otherwise;
(ii) the Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and
duties as the Property Trustee as the holder of the
Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities
exchange or with any other or organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor
Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor
has received an opinion of independent counsel to the
Trust experienced in such matters to the effect that:
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27
a. such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and
privileges of the Holders of the Preferred
Securities (including any Successor Securities) in
any material respect;
b. following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or
lease neither the Trust nor the Successor Entity
will be required to register as an Investment
Company; and
c. following such merger, consolidation, amalgamation
or replacement, the Trust (or the Successor
Entity) will continue to be classified as a
grantor trust for United States federal income tax
purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the common securities and guarantees the
obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the
Securities Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it, if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debentures.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
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28
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission under the
Securities Act or the Exchange Act one or more registration statements on the
applicable forms, including any amendments thereto, pertaining to the Preferred
Securities, the Guarantee and the Junior Subordinated Debt Securities;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to do
any and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
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29
(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the NASDAQ Stock
Market for listing upon notice of issuance of any Preferred Securities, the
Guarantee and the Junior Subordinated Debt Securities; and
(d) to negotiate the terms of and to execute on behalf of the Trust
an underwriting agreement and other related agreements providing for the sale of
the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.
The Sponsor, in its capacity as Issuer, agrees to indemnify the
Property Trustee and the Delaware Trustee for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Property Trustee or the Delaware Trustee, as the case may be,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending either
of them against any claim or liability in connection with the exercise or
performance of any of their respective powers or duties hereunder; the
provisions of this Section 4.2 shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee or the termination of this Declaration.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Issuer's Purchase of Common Securities.
On the applicable Closing Date, the Issuer will purchase all of the
Common Securities issued by the Trust on such Closing Date, for an amount at
least equal to 3% of the capital of the Trust at such time, at the same time as
Preferred Securities are sold; PROVIDED that, if the Option set forth in Section
7.13(a) is exercised, then the Issuer will purchase such additional Common
Securities from the Trust on such second Closing Date such that it will then
hold at least 3% of the capital of the Trust.
The aggregate stated liquidation amount of Common Securities
outstanding at any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2 Covenants of the Common Securities Holder.
For so long as the Preferred Securities remain outstanding, the
Common Securities Holder will covenant (i) to maintain, directly or indirectly,
100% ownership of the Common Securities, (ii) to cause the Trust to remain a
statutory business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Declaration, (iii) to use its
commercially reasonable efforts to ensure that the Trust will not be an
investment company for purposes of the Investment Company Act, and (iv) to take
no action which would
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30
be reasonably likely to cause the Trust to be classified as an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(1) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (2) at least one Regular
Trustee is an employee or officer of, or is affiliated with, the Sponsor; and
(3) one Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the
Delaware Trustee) which shall act as Property Trustee which shall:
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31
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or other Person permitted by the Commission
to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust owners, having a combined capital and
surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination
by federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
6.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 6.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in
this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
__________, ___________ and __________, the business address of all
of whom is c/o Bank United Corp., 3200 Southwest Freeway, Suite 2600, Houston,
Texas 77027.
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32
SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) after the issuance of any Securities (but prior to the
occurrence of an Indenture Event of Default), by vote of
the Holders of a Majority in Liquidation Amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities; and
(iii) after the issuance of the Preferred Securities and the
occurrence of an Indenture Event of Default, by vote of
the Holders of a majority in Liquidation Amount of the
Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
a. until a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust, the Sponsor
and the resigning Property Trustee; or
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33
b. until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee,
as the case may be, shall have been appointed and accepted appointment as
provided in this Section 6.6 within 60 days after delivery to the Sponsor and
the Trust of an instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 6.6,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
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34
SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee, any and all
action of such Regular Trustee shall be evidenced by a written consent of such
Regular Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
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35
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred Securities of the
Trust have an aggregate liquidation amount with respect
to the assets of the Trust of
__________________________________ dollars
($__________________________) with respect to the
initial closing of the sale of Preferred Securities and,
if the Option set forth in Section 7.13(a) is exercised,
an additional aggregate liquidation amount with respect
to the assets of the Trust of __________ dollars
($__________) with respect to the second closing of the
sale of Preferred Securities; PROVIDED that the maximum
aggregate liquidation amount of Preferred Securities of
the Trust shall not exceed ____________ dollars
($_________). The Preferred Securities are hereby
designated for identification purposes only as "_____%
Preferred Securities" (the "Preferred Securities"). The
Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form of Exhibit
A to this Declaration, with such changes and additions
thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the
rules of any stock exchange on which the Preferred
Securities are listed or quoted subject to Section
7.13(b).
(ii) Common Securities. The Common Securities of the Trust
have an aggregate liquidation amount with respect to the
assets of the Trust of
_____________________________________ dollars
($_________________________) with respect to the initial
closing of the sale of Common Securities and, if the
Option set forth in Section 7.13(a) is exercised, an
additional aggregate liquidation amount with respect to
the assets of the Trust of __________ dollars
($__________) with respect to the second closing of the
sale of Common Securities; PROVIDED that the maximum
aggregate liquidation amount of common securities issued
by the Trust shall not exceed __________ dollars
($___________). The Common Securities are hereby
designated for identification purposes only as "____%
Common Securities" (the "Common Securities" and,
together with the Preferred Securities,
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36
the "Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially
in the form of Exhibit B to this Declaration, with such
changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice
subject to section 7.13(b).
(b) Payment of Distributions on, and payment of the Redemption Price
upon a redemption of, the Preferred Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case a Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which Securities may be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be valid
until authenticated by the manual signature of an authorized officer of the
Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Certificates representing Preferred
Securities for original issue.
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The aggregate number of Preferred Securities outstanding at any time shall not
exceed the liquidation amount set forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Certificates. An authenticating agent may
authenticate Certificates whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable undivided beneficial ownership interests in the assets of the
Trust.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the terms of the Securities, the Guarantee,
the Indenture and the Junior Subordinated Debt Securities.
(g) The holders of the Securities shall have no preemptive or
similar rights.
SECTION 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive cumulative
cash Distributions at the rate per annum of % of the stated liquidation amount
of $__ per Security. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
distributions payable for any period shorter than a full quarterly distribution
period shall be computed on the basis of a 30-day month and for periods of less
than a month, the actual number of days elapsed per 30-day month. Subject to
Section 7.1(b), Distributions shall be made on the Preferred Securities and the
Common Securities on a Pro Rata basis. Distributions on the Securities shall,
from the date of original issue, accrue and be cumulative and shall be payable
[quarterly][semi-annually], in arrears, on each __________ [, __________,
_________] and _________, commencing _________ __, ____, when, as and if
available for payment, by the Property Trustee, except as otherwise described
below. Distributions are payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent that
the Trust has funds available for the payment of such Distributions in the
Property Account.
(b) Distributions not paid on the scheduled payment date will
accumulate and compound [quarterly][semi-annually] at the rate of % per annum
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
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(c) If and to the extent that the Issuer makes a payment of
interest, premium and/or principal on the Junior Subordinated Debt Securities
held by the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a Pro Rata distribution of the Payment
Amount to Holders, subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. While the Preferred Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business on the Business Day next preceding such Distribution payment date,
unless a different regular record date is established or provided for the
corresponding interest payment date on the Junior Subordinated Debt Securities.
The relevant record dates for the Common Securities shall be the same as for the
Preferred Securities. If the Preferred Securities shall not continue to remain
represented by one or more Global Securities, the relevant record dates for the
Preferred Securities shall be selected by the Regular Trustees and shall be at
least one Business Day prior to the relevant payment dates. At all times, the
Distribution payment dates shall correspond to the interest payment dates on the
Junior Subordinated Debt Securities. Distributions payable on any Securities
that are not punctually paid on any Distribution payment date, as a result of
the Issuer having failed to make a payment under the Junior Subordinated Debt
Securities, shall cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date determined in
accordance with this Declaration. If any date on which Distributions are payable
on the Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, with the same
force and effect as if made on such payment date.
(e) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities.
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Junior
Subordinated Debt Securities or upon earlier redemption as provided in the
Indenture, the proceeds from such repayment or redemption shall be
simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Junior Subordinated Debt Securities so repaid or redeemed at the
Redemption Price. Holders shall be given not less than 30 nor more than 60 days
notice of such redemption in accordance with Section 7.4.
(b) On the date fixed for any distribution of Junior Subordinated
Debt Securities, upon dissolution of the Trust, (i) the Securities will no
longer be deemed to be outstanding and (ii) certificates representing Securities
will be deemed to represent the Junior Subordinated Debt Securities having an
aggregate principal
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39
amount equal to the stated liquidation amount of, and bearing accrued and unpaid
interest equal to accrued and unpaid distributions on, such Securities until
such certificates are presented to the Sponsor or its agent for transfer or
reissuance.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, will be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata (subject to Section 7.1(b)) and the Preferred Securities to be redeemed
will be redeemed as described in Section 7.4(c) below. The Trust may not redeem
the Securities in part unless all accumulated and unpaid Distributions to the
date of redemption have been paid in full on all Securities then outstanding.
For all purposes of this Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate liquidation amount of Preferred Securities which
has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice requirements
set forth in Section 7.4(a) above, if Securities are to be redeemed, then (i)
with respect to Preferred Securities represented by one or more Global
Securities, by 12:00 noon, New York City time, on the redemption date (provided
that the Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures), the
Property Trustee will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give the
Depositary irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities and (ii) with respect to Securities not
represented by one or more Global Securities (provided that the Issuer has paid
the Property Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Junior Subordinated Debt Securities), the Paying
Agent will pay the relevant Redemption Price to the Holders of such Securities
by check mailed to the address of the relevant Holder appearing on the register
of the Trust on the redemption date. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of
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40
any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Property Trustee or by
the Sponsor as guarantor pursuant to the Guarantee, Distributions on such
Securities will continue to accrue at the then applicable rate from the original
redemption date to the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions which are being paid to Holders who were
Holders on a relevant record date. If a Redemption/Distribution Notice shall
have been given and funds deposited or paid as required, then immediately prior
to the close of business on the date of such deposit or payment, Distributions
will cease to accrue on the Securities called for redemption and all rights of
Holders of such Securities so called for redemption will cease, except the right
of the Holders to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Issuer or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
(a) Except as provided under Section 11.1 and this Article 7 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in Section 7.5(d) below, the
Holders of a Majority in Liquidation Amount of the Preferred Securities voting
separately as a class have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
to direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee, as
Holder of the Junior Subordinated Debt Securities, to (i) exercise the remedies
available to it under the Indenture as a Holder of the Junior Subordinated Debt
Securities; (ii) consent to any amendment or modification of the Indenture or
the Junior Subordinated Debt Securities where such consent shall be required or
(iii) waive any past default and its consequences that is waivable under Section
513 of the Indenture; provided, however, that if an Indenture Event of Default
has occurred and is continuing, then the Holders of 25% of the aggregate
liquidation amount of the Preferred Securities may direct the Property Trustee
to declare the principal of and interest on the Junior Subordinated Debt
Securities due and payable; provided, further, that where a consent or action
under the Indenture would require the consent or act of the Holders of more than
a majority of
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41
the aggregate principal amount of Junior Subordinated Debt Securities affected
thereby, only the Holders of the percentage of the aggregate stated liquidation
amount of the Preferred Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to give such
consent to take such action.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against the Issuer to enforce the
Property Trustee's rights under the Indenture without first instituting any
legal proceeding against the Property Trustee or any other Person. In addition,
if a Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of the Issuer to make any interest, principal or
other required payments when due under the Indenture, then a Holder of Preferred
Securities may directly institute a Direct Action against the Issuer on or after
the respective due date specified in the Junior Subordinated Debt Securities.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Issuer with respect to the Debentures. Such notice shall state that such
Indenture Event of Default also constitutes a Trust Enforcement Event. Except
with respect to directing the time, method, and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any of
the actions described in clause 7.5(b)(i) and (ii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that
the Trust will not fail to be classified as a grantor trust for United States
federal income tax purposes as a result of such action, and each Holder will be
treated as owning an undivided beneficial ownership interest in the Junior
Subordinated Debt Securities.
(e) In the event the consent of the Property Trustee, as the Holder
of the Junior Subordinated Debt Securities, is required under the Indenture with
respect to any amendment or modification of the Indenture, the Property Trustee
shall request the direction of the Holders of the Securities with respect to
such amendment or modification and shall vote with respect to such amendment or
modification as directed by not less than 66-2/3% of the aggregate liquidation
amount of the Securities voting together as a single class; provided, however,
that where a consent under the Indenture would require the consent of the
Holders of more than a 66-2/3%of the aggregate principal amount of the Junior
Subordinated Debt Securities, the Property Trustee may only give such consent at
the direction of the Holders of at least the same proportion in aggregate stated
liquidation amount of the Securities. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities
unless the Property Trustee has obtained an opinion of independent tax counsel
to the effect that the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes as a result of such action,
and each Holder will be treated as owning an undivided beneficial ownership
interest in the Junior Subordinated Debt Securities.
(f) A waiver of an Indenture Event of Default with respect to the
Junior Subordinated Debt Securities will constitute a waiver of the
corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees
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will cause a notice of any meeting at which Holders of Preferred Securities are
entitled to vote to be mailed to each Holder of record of Preferred Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote and (iii) instructions for
the delivery of proxies.
(h) No vote or consent of the Holders of Preferred Securities shall
be required for the Trust to redeem and cancel Preferred Securities or
distribute Junior Subordinated Debt Securities in accordance with this
Declaration and the terms of the Securities.
(i) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Securities that are owned at such time by the Issuer, any Regular Trustee
or any entity directly or indirectly controlled by, or under direct or indirect
common control with, the Issuer or any Regular Trustee, shall not be entitled to
vote or consent and shall, for purposes of such vote or consent, be treated as
if such Securities were not outstanding; PROVIDED, HOWEVER, that persons
otherwise eligible to vote to whom the Issuer or any of its subsidiaries have
pledged Preferred Securities may vote or consent with respect to such pledged
Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is continuing,
the Trustees may be removed at such time only by a Majority in Liquidation
Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 or
Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article VI of this Declaration,
to vote to appoint, remove or replace any Trustee or to increase or decrease the
number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived, or
otherwise eliminated and subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in this paragraph
(c), the Holders of a Majority in Liquidation Amount of the Common Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or direct the exercise of any
trust or power
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43
conferred upon the Property Trustee under this Declaration, including the right
to direct the Property Trustee, as Holder of the Junior Subordinated Debt
Securities, to (i) exercise the remedies available to it under the Indenture as
a Holder of the Junior Subordinated Debt Securities, (ii) consent to any
amendment or modification of the Indenture or the Junior Subordinated Debt
Securities where such consent shall be required or (iii) waive any past default
and its consequences that is waivable under Section 513 of the Indenture;
provided, however, that where a consent or action under the Indenture would
require the consent or act of the Holders of more than a majority of the
aggregate principal amount of Junior Subordinated Debt Securities affected
thereby, only the Holders of the percentage of the aggregate stated liquidation
amount of the Common Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to have such
consent or take such action. Except with respect to directing the time, method,
and place of conducting a proceeding for a remedy, the Property Trustee shall be
under no obligation to take any of the actions described in clause 7.6(c)(i) and
(ii) above unless the Property Trustee has obtained an opinion of independent
tax counsel to the effect that, as a result of such action, for United States
federal income tax purposes the Trust will not fail to be classified as a
grantor trust and each Holder will be treated as owning an undivided beneficial
ownership interest in the Junior Subordinated Debt Securities.
(d) If the Property Trustee fails to enforce its rights under the
Junior Subordinated Debt Securities after a Holder of Common Securities has made
a written request, such Holder of Common Securities may, to the extent permitted
by applicable law, directly institute a legal proceeding directly against the
Issuer to enforce the Property Trustee's rights under the Junior Subordinated
Debt Securities without first instituting any legal proceeding against the
Property Trustee or any other Person.
(e) A waiver of an Indenture Event of Default with respect to the
Junior Subordinated Debt Securities will constitute a waiver of the
corresponding Trust Enforcement Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute Junior Subordinated Debt Securities in accordance with the
Declaration and the terms of the Securities.
SECTION 7.7 Paying Agent.
In the event that any Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Preferred Securities may
be presented for payment ("Paying Agent"). The Trust may appoint the paying
agent and may appoint one or more additional paying agents in such other
locations as it shall determine. The term "Paying Agent" includes any additional
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paying agent. The Trust may change any Paying Agent without prior notice to the
Holders. The Trust shall notify the Property Trustee of the name and address of
any Paying Agent not a party to this Declaration. If the Trust fails to appoint
or maintain another entity as Paying Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent. The Property
Trustee shall initially act as Paying Agent for the Securities. In the event the
Property Trustee shall no longer be the Paying Agent, the Regular Trustees shall
appoint a successor (which shall be a bank or trust company acceptable to the
Issuer) to act as Paying Agent. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the
Issuer.
SECTION 7.8 Listing
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) (i) Subject to this Article 7, Preferred Securities shall be
freely transferable.
(ii) The Holder of the Common Securities may not transfer the
Common Securities except (A) in compliance with a
consolidation, merger, sale, conveyance or lease of the
Sponsor in compliance with Article VIII of the Indenture
or (B) to the Sponsor or an Affiliate thereof in
compliance with applicable law, including the Securities
Act and applicable state securities and blue sky laws.
To the fullest extent permitted by law, any attempted
transfer of the Common Securities other than as set
forth in the immediately preceding sentence shall be
null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office
of the Property Trustee a register (the register maintained in such office being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Preferred Securities and of transfers of Preferred Securities.
The Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Preferred Securities and transfers of Preferred Securities as herein
provided.
(d) Upon surrender for registration of transfer of any Security at
an office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee
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45
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Trust shall execute, and in the case of Preferred Securities the Property
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Trust may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities.
(h) If the Securities are to be redeemed in part, the Trust shall
not be required (A) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 7.4 and ending at the close of business on the day
of such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of the Trustees, the
Sponsor and the Trust harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 7.10, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in
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the relevant Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the register of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities may be issued in the form of one or more
Global Securities. If the Preferred Securities are to be issued in the form of
one or more Global Securities, then a Regular Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within the
meaning of the Declaration hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Preferred Security is
exchangeable for Preferred Securities registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Declaration and no transfer of this Preferred Security
(other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to Bank United Capital I __ or
its agent for registration of transfer, exchange or payment, and any
Preferred Security Certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of the
Depositary (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depositary),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein."
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Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.11
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Preferred Securities not
represented by a Global Security to the Persons in whose names such definitive
Preferred Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or cancelled, such Global Securities shall be, upon
receipt thereof, cancelled by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in Global Securities is exchanged for Preferred Securities not
represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security therefor or any Preferred Security not represented by a Global Security
is exchanged or transferred for part of Global Securities, the principal amount
of such Global Securities shall, in accordance with the standing procedures of
the Depositary, be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Securities by the Property Trustee to reflect such
reduction or increase.
The Trust and the Property Trustee may for all purposes, including
the making of payments due on the Preferred Securities, deal with the Depositary
as the authorized representative of the Holders for the purposes of exercising
the rights of Holders hereunder. The rights of the owner of any beneficial
interest in a Global Security shall be limited to those established by law and
agreements between such owners and depository participants provided, that no
such agreement shall give any rights to any Person against the Trust or the
Property Trustee without the written consent of the parties so affected.
Multiple requests and directions from and votes of the Depositary as holder of
Preferred Securities in global form with respect to any particular matter shall
not be deemed inconsistent to the extent they do not represent an amount of
Preferred Securities in excess of those held in the name of the Depositary or
its nominee.
If at any time the Depositary for any Preferred Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Preferred Securities or
if at any time the Depositary for such Preferred Securities shall no longer be
eligible under this Section 7.11, the Trust shall appoint a successor Depositary
with respect to such Preferred Securities. If a successor Depositary for such
Preferred Securities is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that such Preferred Securities be represented by one or more Global
Securities shall no longer be effective and the Trust shall execute, and the
Property Trustee will authenticate and deliver, Preferred Securities in
definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Preferred Securities representing such Preferred Securities in exchange for such
Global Security or Preferred Securities.
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The Trust may at any time and in its sole discretion determine that
the Preferred Securities issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Preferred Securities. In
such event the Trust shall execute, and the Property Trustee, shall authenticate
and deliver, Preferred Securities in definitive registered form, in any
authorized denominations, in an aggregate liquidation amount equal to the
principal amount of the Global Security or Preferred Securities representing
such Preferred Securities, in exchange for such Global Security or Preferred
Securities.
Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Interests of beneficial owners in a Global Security may be
transferred or exchanged for Preferred Securities not represented by a Global
Security and Preferred Securities not represented by a Global Security may be
transferred or exchange for Global Securities in accordance with rules of the
Depositary and the provisions of Section 7.9.
SECTION 7.13 Over-Allotment Option.
(a) The Regular Trustees, on behalf of the Trust, and the Sponsor may
grant to the underwriters or initial purchasers who are underwriting or
purchasing, as the case may be, any series of Preferred Securities, an option
(the "Option") to purchase an additional liquidation amount of such series of
Preferred Securities on the terms and conditions specified in the underwriting
agreement or purchase agreement, as the case may be, relating to such Preferred
Securities; PROVIDED, HOWEVER, the Option may only be granted if the following
conditions are satisfied:
(i) the Option, if exercised, may not result in the issue and sale of an
aggregate liquidation amount of Preferred Securities greater than
that registered by the Sponsor and the Trust on the applicable
registration statement or registration statements (including by a
registration statement filed under Rule 462(b) under the Securities
Act, if any), as the case may be, with the Commission under the
Securities Act;
(ii) the Option must result, if exercised, in the issuance and sale of
Preferred Securities to such underwriters or initial purchasers, as
the case may be, and the issuance and sale of Common Securities to
the Sponsor on a Pro Rata basis and not in contravention of any
other provision of this Agreement or the Business Trust Act,
consistent with Section 5.1; and
(iii) the Preferred Securities and the Common Securities issued and sold
subject to the exercise of the Option, if any, must be of the same
series and must bear the same CUSIP numbers as the series of
Preferred Securities and the Common Securities,
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49
respectively, which were initially issued and sold by the Trust and
the Sponsor, respectively.
(b) With respect to any issuance of Preferred Securities and Common
Securities following the exercise of the Option,
(i) the designation the "__% Preferred Securities" and, for all purposes
under this Declaration, the defined terms the "Preferred Securities"
shall mean both the Preferred Securities issued initially hereunder
and any Preferred Securities issued pursuant to the exercise of the
Option; and
(ii) the designation the "__% Common Securities" and, for all purposes
under this Declaration, the defined term the "Common Securities"
shall mean both the Common Securities issued initially hereunder and
any Common Securities issued pursuant to the requirement of Section
7.13(a)(ii) regarding the additional issuance of Common Securities
on a Pro Rata basis if the Option is exercised.
(c) If the Option set forth in Section 7.13(a) is exercised on a date
other than the initial Closing Date, then the parties to the Declaration shall
cause there to occur a second closing for the consummation of the sale of the
Preferred Securities and Common Securities under substantially the same
conditions that applied to the initial closing of the sale of such securities,
including the following:
(i) the execution and delivery of a second Preferred Security
Certificate, or such additional Preferred Security Certificates, as
appropriate, which is, or are, as the case may be, substantially
identical in all respects to the Preferred Security Certificate
issued initially; and
(ii) the execution and delivery of a second Common Security Certificate,
or such additional Common Security Certificate, as appropriate,
which is, or are, as the case may be, substantially identical in all
relevant respects to the Common Security Certificate issued
initially.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
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(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the dissolution
of the Trust after obtaining the consent of the Holders
of at least a Majority in Liquidation Amount of the
Securities to dissolve the Trust; or the revocation of
the Sponsor's charter and the expiration of 90 days
after the date of revocation without a reinstatement
thereof;
(iii) the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall
have been paid to the Holders in accordance with the
terms of the Securities;
(v) at the Sponsor's election by notice and direction to the
Property Trustee to distribute the Junior Subordinated
Debt Securities to the Holders of the Securities in
exchange for all of the Securities, subject to the
receipt of any necessary approvals by the Applicable
Regulatory Authorities that may then be required under
the applicable capital guidelines or policies of the
Applicable Regulatory Authorities; PROVIDED that the
Sponsor will be required to obtain an opinion of an
independent counsel that the distribution of the Junior
Subordinated Debt Securities will not be taxable to the
Holders of the Preferred Securities for United States
federal income tax purposes; or
(vi) the time when all of the Regular Trustees and the
Sponsor shall have consented to dissolution of the Trust
provided such action is taken before the issuance of any
Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trusts' liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $__ per Security plus
accumulated and unpaid Distributions thereon to the
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51
date of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such Liquidation, Junior Subordinated Debt Securities in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accumulated and unpaid Distributions on,
such Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis. The
Holders of the Common Securities will be entitled to receive distributions upon
any such Liquidation Pro Rata with the Holders of the Preferred Securities
except that if an Indenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities with
regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee
and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be
made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of the
Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided,
however, the Holders of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
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(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of 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 the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to another Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not
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53
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express
standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 9.4 Indemnification.
(a)(i) The Issuer shall indemnify, to the full extent permitted by
law, any Junior Subordinated Debt-Securities Issuer Indemnified Person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Junior Subordinated Debt-Securities Issuer
Indemnified Person against expenses (including attorney fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Junior Subordinated Debt-Securities Issuer Indemnified
Person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Issuer shall indemnify, to the full extent permitted
by law, any Junior Subordinated Debt-Securities Issuer
Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of
the fact that he is or was a Junior Subordinated
Debt-Securities Issuer Indemnified Person against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust
and except that no such
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54
indemnification shall be made in respect of any claim,
issue or matter as to which such Junior Subordinated
Debt-Securities Issuer Indemnified Person shall have
been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall
determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 9.4(a) (unless ordered by a court) shall be
made by the Issuer only as authorized in the specific
case upon a determination that indemnification of the
Junior Subordinated Debt-Securities Issuer Indemnified
Person is proper in the circumstances because he has met
the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such
a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Junior Subordinated Debt-Securities Issuer Indemnified
Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 9.4(a) shall be
paid by the Issuer in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Junior Subordinated
Debt- Securities Issuer Indemnified Person to repay such
amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Issuer as
authorized in this Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the Issuer if a
determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii)
the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or
the Common Security Holder at the time such
determination is made, such Junior Subordinated
Debt-Securities Issuer Indemnified Person acted in bad
faith or in a manner that such
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55
person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any
criminal proceeding, that such Junior Subordinated
Debt-Securities Issuer Indemnified Person believed or
had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in
instances where the Regular Trustees, independent legal
counsel or Common Security Holder reasonably determine
that such person deliberately breached his duty to the
Trust or its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this
Section 9.4(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested
directors of the Issuer or Preferred Security Holders of
the Trust or otherwise, both as to action in his
official capacity and as to action in another capacity
while holding such office. All rights to indemnification
under this Section 9.4(a) shall be deemed to be provided
by a contract between the Issuer and each Junior
Subordinated Debt-Securities Issuer Indemnified Person
who serves in such capacity at any time while this
Section 9.4(a) is in effect. Any repeal or modification
of this Section 9.4(a) shall not affect any rights or
obligations then existing.
(vi) The Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Junior
Subordinated Debt-Securities Issuer Indemnified Person
against any liability asserted against him and incurred
by him in any such capacity, or arising out of his
status as such, whether or not the Issuer would have the
power to indemnify him against such liability under the
provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or
was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request
of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall
stand in the same position under the provisions of this
Section 9.4(a) with respect to the resulting or
surviving entity as he would have with respect to such
constituent entity if its separate existence had
continued.
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(viii) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 9.4(a) shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Junior
Subordinated Debt-Securities Issuer Indemnified Person
and shall inure to the benefit of the heirs, executors
and administrators of such a person. The obligation to
indemnify as set forth in this Section 9.4(a) shall
survive the resignation or removal of the Delaware
Trustee or the Property Trustee or the termination of
this Declaration.
(b) The Issuer agrees to indemnify the (i) Property Trustee, (ii)
the Delaware Trustee, (iii) any Affiliate of the Property Trustee or the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall
survive the resignation and removal of the Delaware Trustee or the Property
Trustee and the satisfaction and discharge of this Declaration. In addition, the
Issuer has agreed in the Indenture to pay the fees and expenses of the Delaware
Trustee and the Property Trustee.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
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57
ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Account and no other funds of the Trust shall be deposited in
the Property Account. The sole signatories for such accounts shall be designated
by the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
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SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee; and
(iii) the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that
such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee
shall have first received:
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a. an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities) and that
all conditions precedent to the execution and
delivery of such amendment have been satisfied;
and
b. an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the
Securities) and that all conditions precedent to
the execution and delivery of such amendment have
been satisfied; and
(iii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a
grantor trust for United States federal income tax
purposes;
b. reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust
Indenture Act; or
c. cause the Trust to be deemed to be an Investment
Company required to be registered under the
Investment Company Act.
(c) If the Trust has issued any Securities that remain outstanding:
(i) any amendment that would (a) change the amount or timing
of any distribution of the Securities or otherwise
adversely affect the amount of any distribution required
to be made in respect of the Securities as of a
specified date or (b) restrict the right of a Holder of
Securities to institute suit for the enforcement of any
such payment on or after such date, will entitle the
Holders of such Securities, voting together as a single
class, to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with
the approval of each of the Holders of the Securities
affected thereby; and
(ii) any amendment that would (a) adversely affect the
powers, preferences or special rights of the Securities,
whether by way of amendment to this Declaration or
otherwise or (b) result in the dissolution, winding-up
or termination of the Trust other than pursuant to the
terms of this Declaration, will entitle the holders of
the Securities voting together as a single class to vote
on such
<PAGE>
60
amendment or proposal and such amendment or proposal
shall not be effective except with the approval of 66
2/3% of the Securities affected thereby; provided that,
if any amendment or proposal referred to in clause (a)
above would adversely affect only the Preferred
Securities or the Common Securities, then only the
affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal.
(d) This Section 11.1 shall not be amended without the consent of
all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article
5 to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended
without the consent of the Holders of the Securities, if such amendment does not
adversely affect in any material respect the rights of the holders of the
Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 of the Investment
Company Act or written change in interpretation or
application of Rule 3a-5 of the Investment Company Act
by any legislative body, court, government agency or
regulatory authority; or
(v) to modify, eliminate and add to any provision of this
Declaration to ensure that the Trust will be classified
as a grantor trust for United States federal income tax
purposes at all times that any Securities are
outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the
Investment Company Act.
SECTION 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
<PAGE>
61
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at
least 7 days and not more than 60 days before the date
of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under
this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action
that may be taken at a meeting of the Holders of
Securities may be taken without a meeting and without
prior notice if a consent in writing setting forth the
action so taken is signed by the Holders of Securities
owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize
or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present
and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holders for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at
the pleasure of the Holder of Securities executing such
proxy. Except
<PAGE>
62
as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the
Preferred Securities are then listed for trading,
otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such
right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a national banking association, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the Property Trustee
of this Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and it
<PAGE>
63
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
articles of association or incorporation, as the case may be, or the by-laws (or
other similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with
or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration.
SECTION 12.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has the
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration with
or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
<PAGE>
64
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of
the Securities):
c/o Bank United Corp.
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the Regular Trustees, the Property Trustee and the Holders of the Securities):
[INSERT NAME, ADDRESS, CONTACT INFORMATION FOR DELAWARE TRUSTEE]
(c) if given to the Property Trustee, at its Corporate Trust Office
(or such other address as the Property Trustee may give notice of to the Regular
Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on the
register of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 13.2 Governing Law.
<PAGE>
65
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware.
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted in a manner consistent with
such classification.
SECTION 13.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY;
THE SIGNATURE PAGE FOLLOWS.]
<PAGE>
66
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
BANK UNITED CORP.,
as Sponsor, as Common Securities Holder
and as Issuer
By: ____________________________________
Name:
Title:
BANK OF NEW YORK, DELAWARE,
as Property Trustee
By: ____________________________________
Name:
Title:
_________________________________,
as Delaware Trustee
By: ____________________________________
Name:
Title:
_____________, as Regular Trustee
By: ____________________________________
________________, as Regular Trustee
<PAGE>
67
By: ____________________________________
_______________, as Regular Trustee
By: ____________________________________
<PAGE>
EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT
THE FOLLOWING: THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE
MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO
TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
CERTIFICATE NO.___________ NUMBER OF PREFERRED SECURITIES:___________
CUSIP NO._________________
CERTIFICATE EVIDENCING __% PREFERRED SECURITIES
OF
BANK UNITED CAPITAL TRUST
% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $__ PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY BANK UNITED CORP.
BANK UNITED CAPITAL TRUST, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial ownership interests in the assets of the Trust
designated the "__% Preferred Security" (liquidation amount $__ per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in the Declaration (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of , ____, as the same may be amended from time to time (the
"Declaration"), by and among BANK UNITED CORP., _____________, ________________,
<PAGE>
2
and ________________, as Regular Trustees, and Bank of New York, Delaware as
Property Trustee and as Delaware Trustee and the Holders. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Guarantee to the extent described
therein. The Sponsor will provide a copy of the Declaration, the Guarantee and
the Indenture to a Holder without charge upon written request to the Sponsor at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Junior Subordinated Debt Securities as indebtedness and
the Preferred Securities as evidence of undivided indirect beneficial ownership
interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
______ day of , ____.
BANK UNITED CAPITAL TRUST
By:_______________________________
Name:
Title: Regular Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
BANK OF NEW YORK, DELAWARE,
as Property Trustee
By:____________________________________
Authorized Officer
<PAGE>
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE DECLARATION
REFERRED TO BELOW.
CERTIFICATE NO.______ NUMBER OF COMMON SECURITIES:______________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
BANK UNITED CAPITAL TRUST
% COMMON SECURITIES
(LIQUIDATION AMOUNT $__ PER COMMON SECURITY)
BANK UNITED CAPITAL TRUST, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that BANK
UNITED CORP. (the "Holder") is the registered owner of common securities of the
Trust representing an undivided beneficial ownership interest in the assets of
the Trust designated the "_____% Common Securities" (liquidation amount $__ per
Common Security) (the "Common Securities"). The Common Securities are not
transferable and any attempted transfer thereof shall be void except as
permitted by applicable law and by Section 7.9(b)(ii) of the Declaration (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of ____________ ___, ____
(as the same may be amended from time to time, the "Declaration"), by and among
BANK UNITED CORP., as Sponsor, ______________, _______________ and
_______________, as Regular Trustees, and Bank of New York, Delaware as Property
Trustee and as Delaware Trustee, and the Holders. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration, the Guarantee
and the Indenture to the Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Junior Subordinated Debt Securities as indebtedness and
the Common Securities as evidence of an undivided indirect beneficial ownership
interest in the Junior Subordinated Debt Securities.
<PAGE>
2
IN WITNESS WHEREOF, the Trust has executed this certificate this
____ day of , ____.
BANK UNITED CAPITAL TRUST
By:____________________________________
Name:
Title: Regular Trustee
EXHIBIT 4.7
FORM OF
INDENTURE
DATED AS OF _______ __, 1999
BY AND BETWEEN
BANK UNITED CORP.
AND
BANK OF NEW YORK,
AS TRUSTEE
<PAGE>
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and this Indenture.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- ------------------------------------------------------------------------------
SS 310 (a) (1), (2) and (5).....................................6.9
(a) (3)..................................................Not Applicable
(a) (4)..................................................Not Applicable
(b)......................................................6.8
.........................................................6.10
(c)......................................................Not Applicable
SS 311 (a)......................................................6.13(a)
(b)......................................................6.13(b)
(b) (2)..................................................7.3(a) (2)
.........................................................7.3(a) (2)
SS 312 (a)......................................................7.1
.........................................................7.2(a)
(b)......................................................7.2(b)
(c)......................................................7.2(c)
SS 313 (a)......................................................7.3(a)
(b)......................................................7.3(b)
(c)......................................................7.3(a), 7.3(b)
(d)......................................................7.3(c)
SS 314 (a) (1), (2) and (3).....................................7.4
(a) (4)..................................................10.5
(b)......................................................Not Applicable
(c) (1)..................................................1.2
(c) (2)..................................................1.2
(c) (3)..................................................Not Applicable
(d)......................................................Not Applicable
(e)......................................................1.2
(f)......................................................Not Applicable
SS 315 (a)......................................................6.1(a)
(b)......................................................6.2
.........................................................7.3(a) (6)
(c)......................................................6.1(b)
(d)......................................................6.1(c)
(d) (1)..................................................6.1(a) (1)
i
<PAGE>
(d) (2)..................................................6.1(c) (2)
(d) (3)..................................................6.1(c) (3)
(e)......................................................5.14
SS 316 (a)......................................................1.1
(a) (1) (A)..............................................5.12
(a) (1) (B)..............................................5.13
(a) (2)..................................................Not Applicable
(b)......................................................5.8
(c)......................................................1.4(f)
SS 317 (a) (1)..................................................5.3
(a) (2)..................................................5.4
(b)......................................................10.3
SS 318 (a)......................................................1.7
- -----------
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED
TO BE A PART OF THE INDENTURE.
ii
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........1
SECTION 1.1. Definitions.............................................1
SECTION 1.2. Compliance Certificate and Opinions.....................9
SECTION 1.3. Forms of Documents Delivered to Trustee................10
SECTION 1.4. Acts of Holders........................................10
SECTION 1.5. Notices, Etc. to Trustee and Company. .................12
SECTION 1.6. Notice to Holders; Waiver..............................13
SECTION 1.7. Conflict with Trust Indenture Act......................13
SECTION 1.8. Effect of Headings and Table of Contents...............13
SECTION 1.9. Successors and Assigns.................................13
SECTION 1.10. Separability Clause....................................13
SECTION 1.11. Benefits of Indenture..................................13
SECTION 1.12. Governing Law..........................................14
SECTION 1.13. Non-Business Days......................................14
ARTICLE II SECURITY FORMS ..............................................14
SECTION 2.1. Forms Generally........................................14
SECTION 2.2. Form of Face of Security...............................15
SECTION 2.3. Form of Reverse of Security............................18
SECTION 2.4. Additional Provisions Required in Global Security......21
SECTION 2.5. Form of Trustee's Certificate of Authentication........21
ARTICLE III THE SECURITIES..............................................21
SECTION 3.1. Title and Terms........................................21
SECTION 3.2. Denominations..........................................24
SECTION 3.3. Execution, Authentication, Delivery and Dating.........24
SECTION 3.4. Temporary Securities...................................25
SECTION 3.5. Registration, Transfer and Exchange....................26
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.......27
SECTION 3.7. Payment of Interest; Interest Rights Preserved.........28
SECTION 3.8. Persons Deemed Owners..................................30
SECTION 3.9. Cancellation...........................................30
SECTION 3.10. Computation of Interest...............................30
SECTION 3.11. Deferrals of Interest Payment Dates...................30
SECTION 3.12. Right of Set-Off......................................31
SECTION 3.13. Agreed Tax Treatment..................................32
SECTION 3.14. Shortening or Extension of Stated Maturity............32
SECTION 3.15. CUSIP Numbers.........................................32
SECTION 3.16. Over-Allotment Option.................................32
ARTICLE IV SATISFACTION AND DISCHARGE ..................................33
SECTION 4.1. Satisfaction and Discharge of Indenture................33
SECTION 4.2. Application of Trust Money.............................34
iii
<PAGE>
ARTICLE VREMEDIES ............................34
SECTION 5.1. Events of Default......................................34
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.....35
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................37
SECTION 5.4. Trustee May File Proofs of Claim.......................37
SECTION 5.5. Trustee May Enforce Claims Without Possession of
Securities.............................................38
SECTION 5.6. Application of Money Collected.........................38
SECTION 5.7. Limitation on Suits....................................39
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of
Capital Securities.....................................40
SECTION 5.9. Restoration of Rights and Remedies.....................40
SECTION 5.10. Rights and Remedies Cumulative.........................40
SECTION 5.11. Delay or Omission Not Waiver...........................40
SECTION 5.12. Control by Holders.....................................41
SECTION 5.13. Waiver of Past Defaults................................41
SECTION 5.14. Undertaking for Costs..................................42
SECTION 5.15. Waiver of Usury, Stay or Extension Laws................42
ARTICLE VI THE TRUSTEE .................................................42
SECTION 6.1. Certain Duties and Responsibilities....................42
SECTION 6.2. Notice of Defaults.....................................43
SECTION 6.3. Certain Rights of Trustee..............................44
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.45
SECTION 6.5. May Hold Securities....................................45
SECTION 6.6. Money Held in Trust....................................45
SECTION 6.7. Compensation and Reimbursement.........................45
SECTION 6.8. Disqualification; Conflicting Interests................46
SECTION 6.9. Corporate Trustee Required; Eligibility................46
SECTION 6.10. Resignation and Removal; Appointment of Successor......47
SECTION 6.11. Acceptance of Appointment by Successor.................48
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business...............................................49
SECTION 6.13. Preferential Collection of Claims Against Company.....49
SECTION 6.14. Appointment of Authenticating Agent...................50
ARTICLE VII HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY ..........52
SECTION 7.1. Company to Furnish Trustee Names and Addresses of
Holders................................................52
SECTION 7.2. Preservation of Information, Communications to Holders.52
SECTION 7.3. Reports by Trustee.....................................52
SECTION 7.4. Reports by Company ....................................53
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE ......53
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms...53
SECTION 8.2. Successor Corporation Substituted. ....................54
ARTICLE IX SUPPLEMENTAL INDENTURES .....................................55
SECTION 9.1. Supplemental Indentures without Consent of Holders.....55
SECTION 9.2. Supplemental Indentures with Consent of Holders........56
SECTION 9.3. Execution of Supplemental Indentures...................57
SECTION 9.4. Effect of Supplemental Indentures......................57
iv
<PAGE>
SECTION 9.5. Conformity with Trust Indenture Act....................57
SECTION 9.6. Reference in Securities to Supplemental Indentures.....58
ARTICLE X COVENANTS.....................................................58
SECTION 10.1. Payment of Principal, Premium and Interest............58
SECTION 10.2. Maintenance of Office or Agency.......................58
SECTION 10.3. Money for Security Payments to be Held in Trust.......59
SECTION 10.4. Statement as to Compliance............................60
SECTION 10.5. Waiver of Certain Covenants...........................60
SECTION 10.6. Payment of Trust Costs and Expenses...................60
SECTION 10.7. Additional Covenants..................................61
SECTION 10.8. Calculation of Original Issue Discount................62
ARTICLE XI REDEMPTION OF SECURITIES ....................................62
SECTION 11.1. Applicability of This Article.........................62
SECTION 11.2. Election to Redeem; Notice to Trustee.................62
SECTION 11.3. Selection of Securities to be Redeemed................62
SECTION 11.4. Notice of Redemption..................................63
SECTION 11.5. Deposit of Redemption Price...........................64
SECTION 11.6. Payment of Securities Called for Redemption...........64
SECTION 11.7. Right of Redemption of Securities Initially Issued to
a Trust...............................................64
ARTICLE XII SINKING FUNDS...............................................65
SECTION 12.1. Applicability of Article..............................65
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.65
SECTION 12.3. Redemption of Securities for Sinking Fund.............65
ARTICLE XIII SUBORDINATION OF SECURITIES................................67
SECTION 13.1. Securities Subordinate to Senior Debt. ...............67
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc........67
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of
Securities............................................68
SECTION 13.4. No Payment When Senior Debt in Default................69
SECTION 13.5. Payment Permitted If No Default.......................70
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.......70
v
<PAGE>
SECTION 13.7. Provisions Solely to Define Relative Rights...........70
SECTION 13.8. Trustee to Effectuate Subordination...................71
SECTION 13.9. No Waiver of Subordination Provisions.................71
SECTION 13.10. Notice to Trustee.....................................71
SECTION 13.11. Reliance on Judicial Order or Certificate of
Liquidating Agent.....................................72
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt......72
SECTION 13.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights......................73
SECTION 13.14. Article Applicable to Paying Agents.................73
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment.....73
SECTION 13.16. Trust Moneys Not Subordinated.......................73
vi
<PAGE>
ANNEXES
Annex A.....Form of Declaration of Trust
Annex B.....Form of Amended and Restated Declaration of Trust
vii
<PAGE>
FORM OF INDENTURE
This INDENTURE, dated as of _____ __, 1999, is entered into by and
between Bank United Corp., a Delaware corporation (hereinafter called the
"Company") having its principal office at 3200 Southwest Freeway, Houston, Texas
77027, and Bank of New York, a national banking association, as Trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in one or more series (the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more Delaware statutory business trusts
(each a "Trust," and, collectively, the "Trusts") of preferred interests in such
Trusts (the "Capital Securities") and common interests in such Trusts (the
"Common Securities" and, collectively with the Capital Securities, the "Trust
Securities"), and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered; and
WHEREAS, all things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done;
NOW THEREFORE, THIS INDENTURE WITNESSETH: for and in consideration of
the premises and the purchase of the Securities by the holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of
all holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted
<PAGE>
2
accounting principles, and the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of such
computation; PROVIDED that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by
the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT" when used with respect to any Holder has the meaning assigned to it
in Section 1.4.
"ADDITIONAL INTEREST" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security from the applicable
Interest Payment Date.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; PROVIDED, HOWEVER, no Trust to which
Securities have been issued shall be deemed to be an Affiliate of the Company.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee of that board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York or in ________________
are authorized or required by law or executive order to remain closed or (iii) a
day on which the Corporate Trust Office of the Trustee, or, with respect to the
Securities of a series initially issued to a Trust, the principal office of the
Property Trustee under the related Trust Agreement, is closed for business.
"CAPITAL SECURITIES" has the meaning specified in the first recital of
this Indenture.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture
<PAGE>
3
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"COMMON SECURITIES" has the meaning specified in the first recital of
this Indenture.
"COMMON STOCK" means the common stock, par value $1.25 per share, of
the Company.
"COMPANY" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which at the date hereof is located at
__________________________________, Attention: [Corporate Trust Services
Division].
"CORPORATION" includes a corporation, association, company, joint-stock
company or business trust.
"DEFAULTED INTEREST" has the meaning assigned to it in Section 3.7.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"DISCOUNT SECURITY" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"DISTRIBUTIONS" means, with respect to the Trust Securities issued by a
Trust, amounts payable in respect of such Trust Securities as provided in the
related Trust Agreement and referred to therein as "Distributions."
"DOLLAR" means the currency of the United States of America that, as at
the time of payment, is legal tender for the payment of public and private
debts.
"EVENT OF DEFAULT," unless otherwise specified in the supplemental
indenture creating a series of Securities has the meaning assigned to it in
Section 5.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
<PAGE>
4
"EXPIRATION DATE" has the meaning assigned to it in Section 1.4(f).
"EXTENSION PERIOD" has the meaning assigned to it in Section 3.11.
"FEDERAL RESERVE" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Indenture the Federal Reserve is not existing and performing the duties
now assigned to it, then the body performing such duties at such time.
"GLOBAL SECURITY" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"GUARANTEE" means, with respect to the Trust Securities issued by a Trust,
the guarantee by the Company of Distributions on such Trust Securities to the
extent provided in the Guarantee Agreement.
"GUARANTEE AGREEMENT" means, with respect to the Trust Securities issued
by a Trust, the Guarantee Agreement substantially in the form attached hereto as
Annex C, or substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as
amended from time to time.
"HOLDER" means a Person in whose name a Security is registered in the
Securities Register.
"INDENTURE" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"INTEREST PAYMENT DATE" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"INVESTMENT COMPANY EVENT" means, with respect to a Trust, the receipt by
the Trust of an opinion of a nationally recognized independent counsel to the
effect that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of issuance of the Capital Securities of such Trust.
"JUNIOR SUBORDINATED PAYMENT" has the meaning assigned to it in Section
13.2.
<PAGE>
5
"MATURITY" means, when used with respect to any Security, the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"MOODY'S" means Moody's Investors Service, Inc.
"NOTICE OF DEFAULT" means a written notice of the kind specified in
Section 5.1(3).
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"OPTION SECURITIES" has the meaning assigned to it in Section 3.16.
"ORIGINAL ISSUE DATE" means the date of issuance specified as such in each
Security.
"OUTSTANDING" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i)...Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii)..Securities for whose payment or redemption price money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(iii).Securities in substitution for or in lieu of which other Securities
have been authenticated and delivered or which have been paid pursuant to
Section 3.6, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor. Upon the
written request of the Trustee, the Company shall furnish to the Trustee
promptly
<PAGE>
6
an Officers' Certificate listing and identifying all Securities, if any, known
by the Company to be owned or held by or for the account of the Company or any
other obligor on the Securities or any Affiliate of the Company or such obligor,
and, subject to the provisions of Section 6.1, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are Outstanding
for the purpose of any such determination.
"PAYING AGENT" means the Trustee or any Person authorized by the Company
to pay the principal of (or premium, if any) or interest on any Securities on
behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT" means, with respect to the Securities of any series,
the place or places where the principal of (and premium, if any) and interest on
the Securities of such series are payable pursuant to Sections 3.1 and 3.11.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"PROCEEDING" has the meaning assigned to it in Section 13.2.
"PROPERTY TRUSTEE" means, in respect of any Trust, the commercial bank or
trust company identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of such Trust under such
Trust Agreement and not in its individual capacity, or its successor in interest
in such capacity, or any successor property trustee appointed as therein
provided.
"REDEMPTION DATE" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"REGULATORY CAPITAL EVENT" means the receipt by the Trust of an opinion of
independent bank regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder) of the United
States or any rules, guidelines or policies of the Federal Reserve or (b) any
official administrative pronouncement or judicial decision for interpreting or
applying such laws or regulations which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original issuance
of the Capital Securities, the Capital Securities do not constitute, or within
90 days of the date thereof, will not constitute Tier I capital (or its then
equivalent); PROVIDED, HOWEVER, that the distribution of the Securities in
connection with the liquidation of the Trust by the Debenture Issuer shall not
in and of itself constitute a Regulatory
<PAGE>
7
Capital Event unless such liquidation shall have occurred in connection with a
Tax Event or an Investment Company Event.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
of Securities of a series represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities of a series not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day).
"REGULAR TRUSTEE" means, in respect of any Trust, each Person identified
as an "Regular Trustee" in the related Trust Agreement, solely in such Person's
capacity as Regular Trustee of such Trust under such Trust Agreement and not in
such Person's individual capacity, or any successor Regular Trustee appointed as
therein provided.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
"RIGHTS PLAN" means a plan of the Company providing for the issuance by
the Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock of the Company, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw
Hill Companies, Inc.
"SECURITIES" or "SECURITY" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 3.5.
"SENIOR DEBT" means with respect to any Person, whether recourse is to all
or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments
of such Person, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services, (v) every capital lease obligation of such Person, (vi)
every obligation of such Person for claims (as defined in Section 101(4) of the
United States Bankruptcy Code of 1978, as amended) in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts, options and swaps and similar arrangements and (vii) every obligation
of the type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of
<PAGE>
8
which, in either case, such Person has guaranteed or is responsible or liable,
directly or indirectly, as obligor or otherwise; PROVIDED that "Senior Debt"
shall not include (a) any obligations which, by their terms, are expressly
stated to rank PARI PASSU in right of payment with, or to not be superior in
right of payment to, the Securities, (b) any obligations of the Company which
when incurred and without respect to any election under Section 1111(b) of the
United States Bankruptcy Code of 1978, as amended, was without recourse to the
Company, (c) any obligations of the Company to any of its subsidiaries, (d)
obligations of the Company to any employee or (e) any obligations in respect of
debt securities issued to any trust, or a trustee of such trust, partnership or
other entity affiliated with the Company that is a financing entity of the
Company in connection with the issuance by such financing entity of securities
that are similar to the Capital Securities, or (f) trade accounts payable or
accrued liabilities arising in the ordinary course of business.
"SPECIAL RECORD DATE" means, for the payment of any Defaulted Interest, a
date fixed by the Trustee pursuant to Section 3.7.
"STATED MATURITY" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Security as the date on which the principal of
such Security or such installment of interest is due and payable, in the case of
such principal, as such date may be shortened or extended as provided pursuant
to the terms of such Security and this Indenture.
"SUBSIDIARY" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"TAX EVENT" means the receipt by the Trust of an opinion of independent
tax counsel experienced in such matters, to the effect that, as a result of (a)
any amendment to, change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any official administrative
pronouncement, action or judicial decision interpreting or applying such laws or
regulations, which such amendment or change becomes effective or proposed
change, pronouncement, action or decision is announced on or after the Closing
Date, there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to the United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Debenture Issuer on the Debentures is not, or within 90
days of the date of such opinion, will not be, deductible by the Debenture
Issuer, in whole or in part, by the Debenture Issuer for United States federal
income tax purposes, or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"TRUST" has the meaning specified in the first recital of this
Indenture.
"TRUST AGREEMENT" means, with respect to a Trust, a Declaration of Trust
substantially in the form attached hereto as Annex A, as amended by the form of
Amended and Restated Declaration
<PAGE>
9
of Trust substantially in the form attached hereto as Annex B, or substantially
in such form as may be specified as contemplated by Section 3.1 with respect to
the Securities of any series, in each case as amended from time to time.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder and, if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 (15 U.S.C.
SS 77aaa-77bbb), as amended and as in effect on the date as of this Indenture,
except as provided in Section 9.5.
"TRUST SECURITIES" has the meaning specified in the first recital of
this Indenture.
"VICE PRESIDENT" means, when used with respect to the Company, any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.5) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
<PAGE>
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made or caused to be made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
<PAGE>
10
SECTION 1.3. Forms of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel rendering such Opinion of Counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent or proxy duly
appointed by such Holder in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
is or are delivered to the Trustee, and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a Person acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
<PAGE>
11
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The Securities Register shall be conclusive proof of the ownership of
Securities by a Holder.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, PROVIDED that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date,
PROVIDED that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of the relevant Outstanding Securities on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of the relevant
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of the relevant Securities in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12, in each
case with respect to the relevant Securities. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date, PROVIDED that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of the relevant Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been
<PAGE>
12
set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of the relevant
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of the relevant Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, PROVIDED that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of the relevant Outstanding Securities in the manner set forth in
Section 10.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office or such other office or agency designated by the Trustee pursuant hereto,
or
(2) the Company by the Trustee, any Holder or any holder of Capital
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class
<PAGE>
13
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Securities Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause
In case any provision of this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt, the Holders of the Securities and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2,
the holders of Capital Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
<PAGE>
14
SECTION 1.12. Governing Law
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules of any
securities exchange or automated quotation system on which the Securities may be
listed or traded or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 with respect to the authentication and delivery of
such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange or automated quotation system on which the Securities may be
listed or traded, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
<PAGE>
15
or automated quotation system on which the Securities may be listed or traded,
all as determined by the officers executing such Securities, as evidenced by
their execution of such securities.
SECTION 2.2. Form of Face of Security
BANK UNITED CORP.
__% JUNIOR SUBORDINATED DEBENTURES DUE __________
No. ____________________ CUSIP ___________
$_______________________
Bank United Corp., a corporation organized and existing under the laws of
the State of _____________ (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of _________ Dollars on __________ __, ____[;
provided that the Company may, subject to certain conditions set forth in
Section 3.14 of the Indenture, (i) shorten the Stated Maturity of the principal
of this Security to a date not earlier than __________, and (ii) extend the
Stated Maturity of the principal of this Security at any time on one or more
occasions, but in no event to a date later than __________]. The Company further
promises to pay interest on said principal sum from _____________, _________ or
from the most recent interest payment date (each such date, an "Interest Payment
Date") on which interest has been paid or duly provided for, [monthly]
[quarterly] [semi-annually] [IF APPLICABLE, INSERT - (subject to deferral as set
forth herein)] in arrears on [INSERT APPLICABLE INTEREST PAYMENT DATES] of each
year, commencing ____________, _______________, at the rate of ___% per annum,
until the principal hereof shall have become due and payable, [IF APPLICABLE,
INSERT - plus Additional Interest, if any,] until the principal hereof is paid
or duly provided for or made available for payment [IF APPLICABLE, INSERT - and
on any overdue principal and (without duplication and to the extent that payment
of such interest is enforceable under applicable law) on any overdue installment
of interest at the rate of ____% per annum, compounded [monthly] [quarterly]
[semi-annually]. The amount of interest payable for any period shall be computed
on the basis of twelve 30-day months and a 360-day year. The amount of interest
payable for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Security is not a Business Day, then a
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable. A "BUSINESS DAY" shall mean any
day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York or in ________________ are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee [IF APPLICABLE, INSERT - or the principal
office of the Property Trustee under the Trust Agreement hereinafter referred to
for Bank United Capital Trust,] is closed for business. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities is registered at the close
of business on the Regular Record Date for
<PAGE>
16
such interest installment, which shall be the ________________ [INSERT
DEFINITION OF REGULAR RECORD DATES]. Any such interest installment not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange or automated quotation system on
which the Securities of this series may be listed or traded, and upon such
notice as may be required by such exchange or self-regulatory organization, all
as more fully provided in said Indenture.
[IF APPLICABLE, INSERT - So long as no Event of Default has occurred and
is continuing, the Company shall have the right at any time during the term of
this Security to defer payment of interest on this Security, at any time or from
time to time, for up to ______ consecutive [monthly] [quarterly] [semi-annual]
interest payment periods with respect to each deferral period (each an
"EXTENSION PERIOD"), during which Extension Periods the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon to the extent permitted by applicable
law); PROVIDED, HOWEVER, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; PROVIDED, FURTHER, that during any
such Extension Period, the Company shall not, and shall not permit any
Subsidiary of the Company to, (i) declare or pay any dividends or distributions
on or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks PARI PASSU with or junior in interest to this Security
or (iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks PARI PASSU with or junior in interest to this Security (other
than (a) dividends or distributions in the Company's capital stock, (b) any
declaration of a dividend in connection with the implementation of a Rights Plan
or the redemption or repurchase of any rights distributed pursuant to a Rights
Plan, (c) payments under the Guarantee with respect to this Security, and (d)
purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers or
employees, related to the issuance of Common Stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of Common Stock
(or securities convertible or exchangeable for Common Stock) as consideration in
an acquisition transaction that was entered into prior to the commencement of
such Extension Period. Prior to the termination of any such Extension Period,
the Company may further defer the payment of interest, PROVIDED that no
Extension Period shall exceed __ consecutive [months] [quarters] [semi-annual]
periods or extend beyond the Stated Maturity of the principal of this Security.
Upon the termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due, the Company
may elect to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension Period except at the end
thereof. The Company shall give the Holder of this Security and the Trustee
notice of its election to begin any Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on this
Security would be payable but for such deferral [IF APPLICABLE, INSERT - or,
with respect to the Securities issued to a Trust, so long as such Securities are
held by such Trust, prior to the earlier of (i) the next succeeding date on
which
<PAGE>
17
Distributions on the Capital Securities would be payable but for such deferral
or (ii) the date the Administrative Trustees are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date]].
Payment of principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts [IF APPLICABLE, INSERT -; PROVIDED, HOWEVER, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated in writing at least 15 days before the
relevant Interest Payment Date by the Person entitled thereto as specified in
the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
18
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
BANK UNITED CORP.
By:_______________________________________
[PRESIDENT OR EXECUTIVE VICE PRESIDENT]
Attest:
______________________________________
[SECRETARY OR ASSISTANT SECRETARY]
SECTION 2.3. Form of Reverse of Security
This Security is one of a duly authorized issue of securities of the
Company (herein called the "SECURITIES"), issued and to be issued in one or more
series under an Indenture, dated as of _____ __, 1999 (herein called the
"INDENTURE"), between the Company and __________________________, as Trustee
(herein called the "TRUSTEE", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$_____________].
All terms used in this Security that are defined in the Indenture [IF
APPLICABLE, INSERT - or in the Amended and Restated Declaration of Trust, dated
as of _______ __, ____, as amended (the "Trust Agreement"), for Bank United
Capital Trust, among Bank United Corp., as Depositor, and the Trustees named
therein, shall have the meanings assigned to them in the Indenture [IF
APPLICABLE, INSERT - or the Trust Agreement, as the case may be].
[IF APPLICABLE, INSERT - The Company may at any time, at its option, on or
after _________, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [IF APPLICABLE, INSERT
- - including Additional Interest, if any] to the Redemption Date.]
[IF APPLICABLE, INSERT - Upon the occurrence and during the continuation
of a Tax Event, Investment Company Event or a Regulatory Capital Event in
respect of a Trust, the Company may, at its option, at any time within 90 days
of the occurrence of such Tax Event, Investment Company Event or Regulatory
Capital Event redeem this Security, in whole but not in part, subject to the
provisions of Section 11.7 and the other provisions of Article XI of the
Indenture, at a redemption price equal to 100% of the principal amount thereof
plus accrued and unpaid interest, including Additional Interest, if any, to the
Redemption Date.]
<PAGE>
19
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of all series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of all series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
[IF THE SECURITY IS NOT A DISCOUNT SECURITY, -As provided in and subject
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), PROVIDED that, in the case of the Securities of this series issued
to a Trust, if upon an Event of Default, the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series fails
to declare the principal of all the Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount of
the Capital Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration the
principal amount of and the accrued interest (including any Additional Interest)
on all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture.]
[IF THE SECURITY IS A DISCOUNT SECURITY, -As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities of this
series issued to a Trust, if upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series fails to declare the principal of all the Securities of this
series to be immediately due and payable, the holders of at least 25% in
<PAGE>
20
aggregate Liquidation Amount of the Capital Securities then outstanding shall
have such right by a notice in writing to the Company and the Trustee. Such
amount shall be equal to - INSERT FORMULA FOR DETERMINING THE AMOUNT. Upon any
such declaration, such amount of the principal of and the accrued interest
(including any Additional Interest) on all the Securities of this series shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $_________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global Security
<PAGE>
21
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5. Form of Trustee's Certificate of Authentication
This is one of the Securities referred to in the mentioned Indenture.
Dated:
____________________________________
as Trustee
By:________________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. The
following matters shall be established in or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the Securities of such series, which shall distinguish
the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities which, pursuant to the last paragraph of Section 3.3, are deemed
never to have been authenticated and delivered
<PAGE>
22
hereunder); PROVIDED, HOWEVER, that the authorized aggregate principal amount of
such series may be increased above such amount by a Board Resolution to such
effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium, if any) and
interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within which, or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which the
Securities of such series may be redeemed, in whole or in part, at the option of
the Company;
(g) the obligation or the right, if any, of the Company to redeem, repay
or purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions or upon the happening of a specified event,
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $25 and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to
the Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
<PAGE>
23
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global Securities, the form of any legend
or legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to or in
lieu of those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the additions
or changes, if any, to this Indenture with respect to the Securities of such
series to permit or facilitate such conversion or exchange;
(r) the form or forms of the Trust Agreement, Amended and Restated Trust
Agreement and Guarantee Agreement, if different from the forms attached hereto
as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth in such Officers' Certificate or
in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Debt as provided in Article XIII.
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24
SECTION 3.2. Denominations
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $25 and any integral multiple thereof,
unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its President
or one of its Vice Presidents under its corporate seal reproduced or impressed
thereon and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and make such Securities available for delivery. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
<PAGE>
25
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the Security of such
series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall not be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities of such
series in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations having
the same Original Issue Date and Stated Maturity and having the same terms as
such temporary Securities. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
<PAGE>
26
SECTION 3.5. Registration, Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and make available for delivery, in the name
of the designated transferee or transferees, one or more new Securities of the
same series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such Depositary (i) has
<PAGE>
27
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as depositary, in either case unless
the Company has approved a successor Depositary within 90 days, (B) there
shall have occurred and be continuing an Event of Default with respect to
such Global Security, (C) the Company in its sole discretion determines
that such Global Security will be so exchangeable or transferable or (D)
there shall exist such circumstances, if any, in addition to or in lieu of
the foregoing as have been specified for this purpose as contemplated by
Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6
or 11.6 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the opening of business 15 days before
the day of selection for redemption of Securities pursuant to Article XI and
ending at the close of business on the day of mailing of notice of redemption or
(b) to transfer or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Security to be redeemed in part, any portion
thereof not to be redeemed.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security
of the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such mutilated Security, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security, and
(ii) such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
<PAGE>
28
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Interest Rights Preserved
Interest on any Security of any series which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities. At the option of
the Company, interest on any series of Securities may be paid (i) by check
mailed to the address of the Person entitled thereto as it shall appear on the
Securities Register of such series or (ii) by wire transfer in immediately
available funds at such place and to such account as designated by the Person
entitled thereto as specified in the Securities Register of such series.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
<PAGE>
29
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities of the series in respect
of which interest is in default may be listed or traded and, upon such notice as
may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Any interest on any Security which is deferred or extended pursuant to
Section 3.11 shall not be Defaulted Interest for the purposes of this Section
3.7.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9. Cancellation
<PAGE>
30
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. Upon written request, all canceled Securities shall
be returned by the Trustee to the Company and destroyed by the Company.
SECTION 3.10. Computation of Interest
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
period shall be computed on the basis of a 360-day year of twelve 30-day months
and interest on the Securities of each series for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months.
SECTION 3.11. Deferrals of Interest Payment Dates
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31
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "EXTENSION PERIOD") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law) to the Persons in whose
names that Securities are registered at the close of business on the Regular
Record Date with respect to the Interest Payment Date at the end of such
Extension Period; PROVIDED, HOWEVER, that no Extension Period shall exceed the
period or periods specified in such securities or extend beyond the Stated
Maturity of the principal of the Securities of such series; PROVIDED, FURTHER,
that during any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks PARI PASSU with or junior in interest to the
Securities of such series or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company that by their terms rank PARI PASSU with or junior in interest to the
securities of such series (other than (a) dividends or distributions in the
Company's capital stock, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan, or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under the Guarantee
with respect to such Security, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees, related to the issuance of Common Stock or
rights under a dividend reinvestment and stock purchase plan, or related to the
issuance of Common Stock (or securities convertible or exchangeable for Common
Stock) as consideration in an acquisition transaction that was entered into
prior to the commencement of such Extension Period). Prior to the termination of
any such Extension Period, the Company may further defer the payment of
interest, PROVIDED that no Extension Period shall exceed the period or periods
specified in such Securities or extend beyond the Stated Maturity of the
principal of such Securities. Upon termination of any Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Company shall give
the Holders of the Securities of such series and the Trustee written notice of
its election to begin any such Extension Period at least one Business Day prior
to the next succeeding Interest Payment Date on which interest on Securities of
such series would be payable but for such deferral or, with respect to the
Securities of a series issued to a Trust, so long as such Securities are held by
such Trust, prior to the earlier of (i) the next succeeding date on which
Distributions on the Capital Securities of such Trust would be payable but for
such deferral or (ii) the date the Administrative Trustees of such Trust are
required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Capital Securities of the
record date or the date such Distributions are payable, but in any event not
less than one Business Day prior to such record date.
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32
The Trustee shall promptly give notice, in the name and at the expense of
the Company, of the Company's election to begin any such Extension Period to the
Holders of the Outstanding Securities of such series.
SECTION 3.12. Right of Set-Off
With respect to the Securities of a series issued to a Trust,
notwithstanding anything to the contrary in this Indenture, the Company shall
have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee relating to such Security or under Section 5.8 of
this Indenture.
SECTION 3.13. Agreed Tax Treatment
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security intend that
such Security constitutes indebtedness and agree to treat such Security as
indebtedness for United States federal, local and state tax purposes.
SECTION 3.14. Shortening or Extension of Stated Maturity
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the Original Issue Date of the Securities of such series;
provided that, if the Company elects to exercise its right to extend the Stated
Maturity of the principal of the Securities of such series pursuant to clause
(ii), above, at the time such election is made and at the time of extension (A)
the Company is not in bankruptcy, otherwise insolvent or in liquidation, (B) the
Company is not in default in the payment of any interest or principal on such
Securities, (C) in the case of any series of Securities held by a Trust, such
Trust is not in arrears on payments of Distributions on the Capital Securities
issued by such Trust and no deferred Distributions are accumulated and (D) such
Securities are rated not less than BBB- by S&P or Baa3 by Moody's or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of the
Series A Subordinated Debentures, it shall give written notice to the Trustee,
and the Trustee shall give notice of such shortening or extension to the
Holders, no less than 30 and no more than 60 days prior to the effectiveness
thereof. The Company's right to shorten the Stated Maturity of the principal of
the Securities of such series pursuant to clause (i) above is subject to the
Company having received prior approval of the Federal Reserve if required under
applicable capital guidelines or policies.
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SECTION 3.15. CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
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SECTION 3.16. Over-Allotment Option
(a) Pursuant to Section 7.13(a) of the Trust Agreement, if the Option (as
defined in the Trust Agreement) is exercised, then the Company shall issue and
sell such additional Securities (the "Option Securities") to the Trust; PROVIDED
that:
(1) the aggregate principal amount of Option Securities shall not exceed
the aggregate liquidation amount of Trust Securities issued and sold
on the applicable Closing Date (as defined in the Trust Agreement);
and
(2) the Option Securities shall be of the same series and shall bear the
same CUSIP number, pursuant to Section 3.15 hereof, as the
Securities initially issued and sold hereunder corresponding to such
Trust Securities issued initially.
(b) If Option Securities are issued hereunder on a date other than the
initial Closing Date, then the Company shall execute and deliver, pursuant to
Section 3.3 hereof, and the Trustee shall authenticate, pursuant to section 3.3
hereof, a second Security, or such additional Securities, as appropriate, the
form of which Security is provided by Article II hereof and which is
substantially identical in all relevant respects to the form of Security
executed and delivered on such initial Closing Date.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
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35
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of Clause (B) (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which
the Securities of such series are payable sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
interest (including any Additional Interest) to the date of such deposit
(in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default
"Event of Default", wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall
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36
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any Interest Payment Date in the case of an
Extension Period); or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Company in this Indenture with respect to that
series (other than a covenant or warranty a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the
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37
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), PROVIDED that,
in the case of the Securities of a series issued to a Trust, if, upon an Event
of Default, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series fail to declare the principal
amount (or, if the Securities of that series are Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all the Securities of that series to be immediately due and payable, the
holders of at least 25% in aggregate liquidation amount of the corresponding
series of Capital Securities then outstanding shall have such right by a notice
in writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued interest
(including any Additional Interest) on all the Securities of such series shall
become immediately due and payable. Payment of principal and interest (including
any Additional Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII notwithstanding that such amount shall become
immediately due and payable as herein provided. If an Event of Default specified
in Section 5.1(4) or 5.1(5) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if the Securities of that series are Discount Securities, such portion of
the principal amount of such Securities as may be specified by the terms of that
series) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13;
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provided that, in the case of Securities of a series held by a Trust, if the
Holders of at least a majority in principal amount of the Outstanding Securities
of that series fails to rescind and annul such declaration and its consequences,
the holders of a majority in aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of the related series of
Capital Securities then outstanding shall have such right by written notice to
the Company and the Trustee, subject to the satisfaction of the conditions set
forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
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(a) the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration of acceleration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
(and premium, if any) or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Securities of that series are Discount Securities, such portion of
the principal amount as may be due and payable pursuant to a declaration
in accordance with Section 5.2) (and premium, if any) and interest
(including any Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may be necessary
or advisable and to take any and all actions as are authorized under the
Trust Indenture Act in order to have the claims of the Holders and any
predecessor to the Trustee under Section 6.7 allowed in any such judicial
proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such
claims and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected
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Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon such series of Securities for principal (and premium, if any),
interest (including any Additional Interest), in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or for the appointment of a receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of security or indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain
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priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Capital Securities
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series held by a Trust, any holder of the
corresponding series of Capital Securities held by such Trust shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(1) or
5.1(2), to institute a suit directly against the Company for enforcement of
payment to such holder of principal of (premium, if any) and (subject to Section
3.7) interest (including any Additional Interest) on the Securities having a
principal amount equal to the aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of such Capital Securities of
the corresponding series held by such holder.
SECTION 5.9. Restoration of Rights and Remedies
If the Trustee, any Holder or any holder of Capital Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee, such Holder or such holder of Capital
Securities, then and in every such case the Company, the Trustee, the Holders
and such holder of Capital Securities shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee, the
Holders and the holders of Capital Securities shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative
Except as otherwise provided in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Capital Security to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein.
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Every right and remedy given by this Article or by law to the Trustee or
to the Holders and the right and remedy given to the holders of Capital
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Capital
Securities, as the case may be.
SECTION 5.12. Control by Holders
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, PROVIDED that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series and, in the case of any Securities of a
series issued to a Trust, the holders of a majority in Liquidation Amount (as
defined in the relevant Trust Agreement) of Capital Securities issued by such
Trust may waive any past default hereunder and its consequences with respect to
such series except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series (unless all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become due
solely by such acceleration, have been cured or annulled as provided in Section
5.3 and the Company has paid or deposited with the Trustee a sum sufficient to
pay all overdue installments of interest (including any Additional Interest) on
all Securities of that series, the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Securities, and all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel), or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
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Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Capital
Securities issued by such Trust, by all holders of Capital Securities issued by
such Trust.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
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(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.12 relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived;
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PROVIDED, HOWEVER, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and PROVIDED, FURTHER,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.3. Certain Rights of Trustee
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
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46
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 6.7. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed in writing between the Company and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence or
bad faith; and
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47
(3) to indemnify each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any and all loss, liability, damage, claim or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or bad
faith, arising out of or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. This
indemnification shall survive the termination of this Agreement.
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee. Such lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States of America or of any state or territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the
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48
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common control
with the Company shall serve as Trustee for the Securities of any series issued
hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after such removal, the Trustee
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series,
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49
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
with respect to the Securities of that or those series. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
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50
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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51
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any state or territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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52
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
_______________________________________,
As Trustee
By:_____________________________________
AS AUTHENTICATING AGENT
By:_____________________________________
AUTHORIZED OFFICER
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53
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such January 1 and July 1, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
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54
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and also with the Commission. The Company will promptly
notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; PROVIDED that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
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55
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of the Securities of a series held by a Trust, such
consolidation, merger, conveyance, transfer or lease is permitted under the
related Trust Agreement and Guarantee and does not give rise to any breach or
violation of the related Trust Agreement or Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and any such supplemental indenture complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to Section 6.1,
may rely upon such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities and may be dissolved and
liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the written order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall make
available for delivery any Securities which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
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56
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, PROVIDED that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to a Trust
and for so long as any of the corresponding series of Capital Securities issued
by such Trust shall remain outstanding, the holders of such Capital Securities;
or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the
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57
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with respect
to the subordination of Outstanding Securities of any series in a manner adverse
to the Holders thereof;
PROVIDED, FURTHER, that, in the case of the Securities of a series issued to a
Trust, so long as any of the corresponding series of Capital Securities issued
by such Trust remains outstanding, (i) no such amendment shall be made that
adversely affects the holders of such Capital Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount (as defined in the Trust
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Agreement under which such Trust is organized) of such Capital Securities then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and, subject to Section 3.7, unpaid
interest (including any Additional Interest) thereon have been paid in full and
(ii) no amendment shall be made to Section 5.8 of this Indenture that would
impair the rights of the holders of Capital Securities provided therein without
the prior consent of the holders of each Capital Security then outstanding
unless and until the principal (and premium, if any) of the Securities of such
series and all accrued and (subject to Section 3.7) unpaid interest (including
any Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Capital Securities, or
which modifies the rights of the Holders of Securities or holders of Capital
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities or holders of Capital Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be provided, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including Additional Interest) on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation and any change in
the location of any such office or agency.
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SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on Securities in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest (including Additional Interest);
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest (including Additional Interest) on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by mandatory
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provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each calendar year of the Company ending after the date hereof, an Officers'
Certificate, one of the signatories of which shall be the principal executive,
principal financial or principal accounting officer of the Company, covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. For the purpose of this Section 10.4, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with
respect to the Securities of any series, if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 10.6. Payment of Trust Costs and Expenses.
Since each Trust is being formed solely to facilitate an investment in the
Securities, the Company, in its capacity as the issuer of the Securities, hereby
covenants to pay all debts and obligations (other than with respect to the
Capital Securities and Common Securities) and all costs and expenses of each
Trust (including, but not limited to, all costs and expenses relating to the
organization of the Trust, the fees and expenses of the Trustees and all costs
and expenses relating to the operation of the Trust) and to pay any and all
taxes, duties, assessments or governmental
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charges of whatever nature (other than withholding taxes) imposed on the Trust
by the United States, or any other taxing authority, so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
expenses will be equal to the amounts the Trust and the Property Trustee would
have received had no such costs or expenses been incurred by or imposed on the
Trust. The obligations of the Company to pay all debts, obligations, costs and
expenses of each Trust (other than with respect to the Capital Securities and
Common Securities) shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (i) declare or pay any dividends or distributions on, or redeem purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock, or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank PARI PASSU with or junior in interest to the Securities of
such series or (iii) make any guarantee payments with respect to any guarantee
by the Company of debt securities of any subsidiary of the Company if such
guarantee ranks PARI PASSU with or junior in interest to the Securities (other
than (a) dividends or distributions in the Company's capital stock, (b) any
declaration of a dividend in connection with the implementation of a Rights Plan
or the redemption or repurchase of any rights distributed pursuant to a Rights
Plan, (c) payments under the Guarantee with respect to the Securities of such
Series, and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees, related to the issuance of Common Stock or rights under a
dividend reinvestment and stock purchase plan, or related to the issuance of
Common Stock (or securities convertible or exchangeable for Common Stock) as
consideration in an acquisition transaction that was entered into prior to the
commencement of such Extension Period) if at such time (x) there shall have
occurred any event of which the Company has actual knowledge that (A) with the
giving of notice or the lapse of time or both, would constitute an Event of
Default with respect to the Securities of such series and (B) in respect of
which the Company shall not have taken reasonable steps to cure, (y) if the
Securities of such series are held by a Trust, the Company shall be in default
with respect to its payment of any obligations under the Guarantee relating to
the Capital Securities issued by such Trust or (z) the Company shall have given
notice of its election to begin an Extension Period with respect to the
Securities of such series as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to a Trust (i) to maintain directly or indirectly 100% ownership of the
Common Securities of such Trust; PROVIDED, HOWEVER, that any permitted successor
of the Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) not to voluntarily terminate, wind-up or liquidate such Trust,
except (a) in connection with a distribution of the Securities of such series to
the holders of the Trust Securities of such Trust in liquidation of such Trust
or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such Trust to remain classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes.
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SECTION 10.8. Calculation of Original Issue Discount
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year, if any.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; PROVIDED, HOWEVER, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $25 or, in the case of the
Securities of a series issued to a Trust, $25, or integral multiples thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of the Securities, the Company shall, not less than 45 nor more than
60 days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such date and of the
principal amount of Securities of that series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by lot or such other method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
PROVIDED that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption
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Date by the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of
redemption shall identify the Securities to be redeemed (including CUSIP number,
if a CUSIP number has been assigned to such Securities of such Series) and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series and
having the same terms are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
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SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4,
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price. On presentation and
surrender of such Securities at a Place of Payment in said notice specified, the
said securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date; PROVIDED, HOWEVER,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the Holder thereof, at the expense of the Company, a new Security or Securities
of the same series, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms. If a Global Security is so
surrendered, such new Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to a
Trust.
In the case of the Securities of a series initially issued to a Trust,
except as otherwise established pursuant to Section 3.1 for the Securities of a
Series, the Company, at its option, may redeem such Securities (i) on or after
the date five years after the Original Issue Date of such Securities, in whole
at any time or in part from time to time, or (ii) upon the occurrence and during
the continuation of a Tax Event, an Investment Company Event or a Regulatory
Capital Event, at any time within 90 days following the occurrence of such Tax
Event, an Investment Company Event or Regulatory Capital Event in respect of
such Trust, in whole (but not in part), in each case at a Redemption Price equal
to 100% of the principal amount thereof; PROVIDED that the Company's right
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to redeem such Securities pursuant to clause (i) or (ii) above is subject to the
Company having received the prior approval of the Federal Reserve if required
under applicable capital guidelines or policies of the Federal Reserve.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any sinking fund payment in excess of such minimum amount
which is permitted to be made by the terms of such Securities of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 30 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
PROVIDED that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2
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and will also deliver to the Trustee any Securities to be so delivered. Such
Officers' Certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such Officers' Certificate (or, as required by
this Indenture, the Securities and coupons, if any, specified in such Officers'
Certificate), the sinking fund payment due on the succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit securities as provided in Section 12.2 and without the right to make the
optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent, segregated and held in
trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) on the last sinking fund payment date with respect to
Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 11.6. On or before each sinking fund payment
date, the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided in
Section 10.3) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 3.1) equal to the principal
and any interest accrued to the Redemption Date for Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company, if the
Company is then acting as its own Paying Agent) shall redeem such Securities if
<PAGE>
68
cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of this
Article XII. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; PROVIDED, HOWEVER, that in case
such default or Event of Default shall have been cured or waived herein, such
moneys shall thereafter be applied on the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Debt.
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company (each such event, if any, herein
sometimes referred to as a "Proceeding"), then the holders of Senior Debt shall
be entitled to receive payment in full of all amounts due or to become due on
such Senior Debt, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company (including
any series of the Securities) subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), on account of principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any Subsidiary
and to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding; PROVIDED, HOWEVER, that holders of Senior
Debt shall not be entitled to receive payment of any such amounts to the extent
that such holders would be required by the subordination provisions of such
Senior Debt to pay such amounts over to the obligees on trade accounts payable
or other liabilities arising in the ordinary course of the Company's business.
<PAGE>
69
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all amounts due or to become due on all Senior Debt are paid in
full or payment thereof is provided for in cash or cash equivalents or otherwise
in a manner satisfactory to the holders of Senior Debt, and if such fact shall,
at or prior to the time of such payment or distribution, have been made known to
the Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all amounts due or to become due on all Senior
Debt remaining unpaid, to the extent necessary to pay all amounts due or to
become due on all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt; PROVIDED, HOWEVER,
that holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of the
Company's business.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Debt to substantially the same extent as
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any
Subsidiary; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with this Indenture or as
otherwise specified as contemplated by Section 3.1 for the Securities of any
series by delivering and crediting pursuant to Section 12.2 or as otherwise
specified as contemplated by Section 3.1 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise)
<PAGE>
70
prior to such declaration of acceleration; provided, however, that holders of
Senior Debt shall not be entitled to receive payment of any such amounts to the
extent that such holders would be required by the subordination provisions of
such Senior Debt to pay such amounts over to the obligees on trade accounts
payable or other liabilities arising in the ordinary course of the Company's
business.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
SECTION 13.4. No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt, or in the
event that any event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such Senior Debt becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding
shall be pending with respect to any such default in payment or such event or
default, then no payment or distribution of any kind or character, whether in
cash, properties or securities (including any Junior Subordinated Payment) shall
be made by the Company on account of principal of (or premium, if any) or
interest (including any Additional Interest), if any, on the Securities or on
account of the purchase or other acquisition of Securities by the Company or any
Subsidiary, in each case unless and until all amounts due or to become due on
such Senior Debt are paid in full; PROVIDED, HOWEVER, that nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance
with this Indenture or as otherwise specified as contemplated by Section 3.1 for
the Securities of any series by delivering and crediting pursuant to Section
12.2 or as otherwise specified as contemplated by Section 3.1 for the Securities
of any series Securities which have been acquired (upon redemption or otherwise)
prior to such default in payment or event of default; PROVIDED, HOWEVER, that
holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of the
Company's business.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
<PAGE>
71
SECTION 13.5. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 13.2 or under the conditions
described in Sections 13.3 and 13.4, from making payments at any time of
principal of (and premium, if any) or interest (including Additional Interest)
on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on all
Senior Debt, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Debt of the Company
to substantially the same extent as the Securities are subordinated to the
Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION 13.7. Provisions Solely to Define Relative Rights.
<PAGE>
72
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.8. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 13.10. Notice to Trustee.
<PAGE>
73
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee, agent or representative
therefor; PROVIDED, HOWEVER, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the date
upon which by the terms hereof any monies may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it within two Business Days prior to
such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt (or a trustee therefor) to establish that such
notice has been given by a holder of Senior Debt (or a trustee therefor). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
<PAGE>
74
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise. With respect to the holders of
Senior Debt, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Debt shall be
read into this Indenture against the Trustee.
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any time
be held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
SECTION 13.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such security. For the
purposes of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
<PAGE>
75
SECTION 13.16. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money held in trust under Article IV by the Trustee for the payment of principal
of, premium, if any, and interest on the Securities shall not be subordinated to
the prior payment of any Senior Debt of the Company or subject to the
restrictions set forth in this Article XIII and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Debt of the Company or any other creditor of the Company.
<PAGE>
76
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
BANK UNITED CORP.
By: ______________________________________
Name:
Title:
BANK OF NEW YORK
as Trustee
By: ______________________________________
Name:
Title:
<PAGE>
ANNEX A
<PAGE>
ANNEX B
EXHIBIT 4.8
FORM OF
GUARANTEE AGREEMENT
DATED AS OF __________, ____
BY AND BETWEEN
BANK UNITED CORP.,
AS GUARANTOR
AND
BANK OF NEW YORK,
AS TRUSTEE
<PAGE>
CROSS REFERENCE TABLE*
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
- ---------------- ---------
310(a)..................................................................4.1(a)
310(b).............................................................2.8; 4.1(c)
310(c)............................................................Inapplicable
311(a)..................................................................2.2(b)
311(b)..................................................................2.2(b)
311(c)............................................................Inapplicable
312(a).............................................................2.2(a); 2.9
312(b).............................................................2.2(b); 2.9
312(c).....................................................................2.9
313(a).....................................................................2.3
313(b).....................................................................2.3
313(c).....................................................................2.3
313(d).....................................................................2.3
314(a).....................................................................2.4
314(b)............................................................Inapplicable
314(c).....................................................................2.5
314(d)............................................................Inapplicable
314(e).....................................................................2.5
314(f)............................................................Inapplicable
315(a)..........................................................3.1(d); 3.2(a)
315(b)..................................................................2.7(a)
315(c)..................................................................3.1(c)
315(d)..................................................................3.1(d)
316(a).............................................................2.6; 5.4(a)
316(b).................................................................... 5.3
316(c)........................................................... Inapplicable
317(a)....................................................................2.10
317(b)............................................................Inapplicable
318(a)..................................................................2.1(b)
- --------
* THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THE AGREEMENT AND
SHALL NOT HAVE ANY BEARING UPON THE INTERPRETATION OF ANY OF ITS TERMS OR
PROVISIONS.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1 INTERPRETATION AND DEFINITIONS.....................................1
SECTION 1.1 Interpretation and Definitions............................1
ARTICLE 2 TRUST INDENTURE ACT................................................5
SECTION 2.1 Trust Indenture Act; Application..........................5
SECTION 2.2 Lists of Holders of Securities............................5
SECTION 2.3 Reports by Guarantee Trustee..............................5
SECTION 2.4 Periodic Reports to Guarantee Trustee.....................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent..........6
SECTION 2.6 Guarantee Event of Default; Waiver........................6
SECTION 2.7 Guarantee Event of Default; Notice........................6
SECTION 2.8 Conflicting Interests.....................................6
SECTION 2.9 Disclosure of Information.................................6
SECTION 2.10 Guarantee Trustee May File Proofs of Claim...............7
ARTICLE 3 POWERS, DUTIES AND RIGHTS OFGUARANTEE TRUSTEE......................7
SECTION 3.1 Powers and Duties of Guarantee Trustee....................7
SECTION 3.2 Certain Rights of Guarantee Trustee.......................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee....10
ARTICLE 4 GUARANTEE TRUSTEE.................................................10
SECTION 4.1 Guarantee Trustee; Eligibility...........................11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee11
ARTICLE 5 GUARANTEE.........................................................12
SECTION 5.1 Guarantee................................................12
SECTION 5.2 Waiver of Notice and Demand..............................12
SECTION 5.3 Obligations Not Affected.................................13
SECTION 5.4 Rights of Holders........................................14
SECTION 5.5 Guarantee of Payment.....................................14
SECTION 5.6 Subrogation..............................................14
SECTION 5.7 Independent Obligations..................................14
ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION.........................15
SECTION 6.1 Limitation of Transactions...............................15
SECTION 6.2 Ranking..................................................15
SECTION 6.3 Subordination of Common Securities.......................15
ARTICLE 7 TERMINATION.......................................................16
SECTION 7.1 Termination..............................................16
ARTICLE 8 INDEMNIFICATION...................................................16
SECTION 8.1 Exculpation..............................................16
SECTION 8.2 Indemnification..........................................16
<PAGE>
ARTICLE 9 MISCELLANEOUS.....................................................17
SECTION 9.1 Successors and Assigns...................................17
SECTION 9.2 Amendments...............................................17
SECTION 9.3 Notices..................................................17
SECTION 9.4 Benefit..................................................18
SECTION 9.5 Governing Law............................................18
-ii-
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _______,
____, is executed and delivered by BANK UNITED CORP., a Delaware corporation
(the "Guarantor"), and BANK OF NEW YORK, a national banking association, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Securities (as defined herein) of BANK UNITED
CAPITAL TRUST, a Delaware statutory business trust (the "Trust").
RECITALS
WHEREAS, pursuant to the Declaration (as defined herein), the Trust
is issuing on the date hereof $___,___,___ aggregate liquidation amount of
preferred securities, having a liquidation amount of $__ per security and
designated the "____% Preferred Securities" [OR INSERT OTHER DESIGNATION] of the
Trust (the "Preferred Securities") and $_________ aggregate liquidation amount
of common securities, having a liquidation amount of $__ per security and
designated the "____% Common Securities" of the Trust (the "Common Securities"
and, together with the Preferred Securities, the "Initial Securities");
WHEREAS, pursuant to the Declaration, the Trust and Bank United
Corp., as Sponsor, have granted an Option (as defined in Section 7.13(a) of the
Declaration) to certain underwriters or initial purchasers, as the case may be,
and such Option may be exercised on or within [30] days after the initial
Closing Date (as defined in the Declaration) such that an additional $_________
aggregate liquidation amount of Preferred Securities (the "Option Preferred
Securities") and an additional $__________ aggregate liquidation amount of
Capital Securities (together with the Initial Securities and the Option
Preferred Securities, the "Securities") may be issued and sold pursuant to
Sections 7.13(a) and (b) of the Declaration on such initial or second Closing
Date, as the case may be; PROVIDED that if the Option is not exercised by the
underwriters or the initial purchasers, as the case may be, then the defined
term the "Securities" shall mean only the Initial Securities;
WHEREAS, as incentive for the Holders to purchase the Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee, to pay to the Holders of the Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein; and
WHEREAS, if a Trust Enforcement Event (as defined herein) has
occurred and is continuing, the rights of holders of the Common Securities to
receive Guarantee Payments (as defined herein) under this Guarantee are
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments under this Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
<PAGE>
2
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. In this Guarantee,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to
this Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections and
Recitals are to Articles, Sections and Recitals of this Guarantee, unless
otherwise specified;
(e) unless otherwise defined in this Guarantee, a term defined in
the Trust Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable; and
(g) the following terms have the following meanings:
"AFFILIATE" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"BUSINESS DAY" has the meaning specified in the Declaration.
"COMMON SECURITIES" has the meaning specified in the Recitals
hereto.
"CORPORATE TRUST OFFICE" means the principal office of the
Guarantee Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Guarantee is located at ___________________________, Attention: [Corporate
Trust Services Division].
"COVERED PERSON" means a Holder or beneficial owner of Securities.
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3
"DECLARATION" means the Amended and Restated Declaration of Trust,
dated as of __________ __, ____, as amended, modified or supplemented from time
to time, among the trustees of the Trust named therein, the Guarantor, as
sponsor, and the Holders, from time to time, of undivided beneficial ownership
interests in the assets of the Trust.
"GLOBAL SECURITY" means a fully registered, global Capital Security
representing the Preferred Securities.
"GUARANTEE EVENT OF DEFAULT" means a default by the Guarantor on any
of its payment or other obligations under this Guarantee.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid by
or on behalf of the Trust: (i) any accumulated and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Securities to
the extent the Trust has sufficient funds available therefor at the time, (ii)
the redemption price, including all accumulated and unpaid Distributions to the
date of redemption, with respect to any Securities called for redemption by the
Trust, to the extent the Trust shall have sufficient funds available therefor at
the time or (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the distribution of
Junior Subordinated Debt Securities to the Holders in exchange for Securities as
provided in the Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accumulated and unpaid Distributions on the Securities to the
date of payment, to the extent the Trust has sufficient funds available therefor
and (b) the amount of assets of the Trust remaining available for distribution
to Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution").
"GUARANTEE TRUSTEE" means Bank of New York, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"HOLDER" means any holder of Securities, as registered on the books
and records of the Trust; provided, however, that, in determining whether the
Holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder. Provided that in determining
whether the Holders of the requisite liquidation amount of Preferred Securities
have voted on any matter provided for in this Guarantee, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Certificates (as
defined in the Declaration), the term "Holders" shall mean the holder of the
Global Certificate acting at the direction of the Beneficial Owners (as defined
in the Declaration).
"INDEMNIFIED PERSON" means the Guarantee Trustee, any Affiliate of
the Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Guarantee Trustee.
"INDENTURE" means the Indenture, dated as of __________, 1999, by
and between Bank United Corp. and Bank of New York, and by any other indenture
supplemental thereto
<PAGE>
4
pursuant to which the Junior Subordinated Debt Securities are to be issued to
the Property Trustee as defined in the Declaration of the Trust.
"JUNIOR SUBORDINATED DEBT SECURITIES" means the series of junior
subordinated debt securities to be issued by Bank United Corp. designated the
"____% Junior Subordinated Debt Securities due ____" held by the Property
Trustee as defined in the Declaration of the Trust.
"LIST OF HOLDERS" has the meaning assigned to it in Section 2.2
hereof.
"MAJORITY IN LIQUIDATION AMOUNT" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
In determining whether the Holders of the requisite amount of Securities have
voted, Securities which are owned by the Guarantor or any Affiliate of the
Guarantor or any other obligor on the Securities shall be disregarded for the
purpose of any such determination.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Declaration) of such Person. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer on behalf of such Person to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer
acting on behalf of such Person, such condition or covenant has been
complied with.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PREFERRED SECURITIES" has the meaning specified in the Recitals
hereto.
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5
"REDEMPTION PRICE" has the meaning specified in the Declaration.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee Trustee,
any officer with direct responsibility for the administration of this Guarantee
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"SECURITIES" has the meaning specified in the Recitals hereto.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"TRUST ENFORCEMENT EVENT" in respect of the Securities means an
Indenture Event of Default (as defined in the Indenture) has occurred and is
continuing in respect of the Junior Subordinated Debt Securities.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION. (a) This Guarantee is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES. (a) The Guarantor shall
provide the Guarantee Trustee (i) except while the Preferred Securities are
represented by one or more Global Securities at least one Business Day prior to
the date for payment of Distributions, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of the record date relating to the payment of
such Distributions, and (ii) at any other time, within 30 days of receipt by the
Guarantor of a written request from the Guarantee Trustee for a List of Holders
as of a date no more than 15 days before such List of Holders is given to the
Guarantee Trustee; provided that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Guarantee Trustee by the Guarantor. The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it, provided
that the Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
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6
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY GUARANTEE TRUSTEE. Within 60 days after May
15 of each year (commencing with the year of the first anniversary of the
issuance of the Securities), the Guarantee Trustee shall provide to the Holders
of the Securities such reports as are required by Section 313 of the Trust
Indenture Act (if any) in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor
shall provide to the Guarantee Trustee such documents, reports and information
as required by Section 314(a) (if any) of the Trust Indenture Act and the
compliance certificate required by Section 314(a) of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314(a) of the Trust
Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any such
Guarantee Event of Default shall cease to exist, and any Guarantee Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee, but no such waiver shall extend to any subsequent or other
default or Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 GUARANTEE EVENT OF DEFAULT; NOTICE. (a) The Guarantee
Trustee shall, within 90 days after the occurrence of a Guarantee Event of
Default actually known to a Responsible Officer of the Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of all such Guarantee Events of Default, unless such defaults have been
cured before the giving of such notice; provided, that the Guarantee Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof or a Responsible Officer of the Guarantee Trustee charged
with the administration of the Declaration shall have obtained actual knowledge
thereof.
<PAGE>
7
SECTION 2.8 CONFLICTING INTERESTS. The Declaration shall be deemed
to be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 2.9 DISCLOSURE OF INFORMATION. The disclosure of information
as to the names and addresses of the Holders of the Securities in accordance
with Section 312 of the Trust Indenture Act, regardless of the source from which
such information was derived, shall not be deemed to be a violation of any
existing law, or any law hereafter enacted which does not specifically refer to
Section 312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 2.10 GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM. Upon the
occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee Payments
remaining unpaid and (b) file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have its claims and those of the
Holders of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee on behalf
of the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of
its appointment to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and succession of
title shall be effective whether or not conveyance documents have been executed
and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee for the benefit of the Holders of the
Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee
Event of Default and after the curing of all Guarantee Events of Default that
may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be read
into this Guarantee against the Guarantee Trustee. In case a Guarantee Event of
Default has occurred (that has not been cured or waived pursuant to Section
<PAGE>
8
2.6) and is actually known to a Responsible Officer of the Guarantee Trustee,
the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such Guarantee Events
of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee, and no implied
covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee; but in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee or if the Guarantee Trustee shall
have
<PAGE>
9
reasonable grounds for believing that an indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it under the terms of this
Guarantee.
SECTION 3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE. (a) Subject
to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented by
the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by
the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration or any instrument (or any
rerecording, refiling or re-registration thereof);
(v) The Guarantee Trustee may consult with counsel, and
the advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration
of this Guarantee from any court of competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
at the request or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided, that nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of a Guarantee Event of
<PAGE>
10
Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee;
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents, nominees, custodians or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders, and the signature of the
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be
required to inquire as to the authority of the Guarantee Trustee to
so act or as to its compliance with any of the terms and provisions
of this Guarantee, both of which shall be conclusively evidenced by
the Guarantee Trustee's or its agent's taking such action; and
(x) Whenever in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (i) may request written
instructions from the Holders of a Majority in Liquidation Amount of
the Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such written instructions are
received and (iii) shall be protected in conclusively relying on or
acting in accordance with such written instructions.
(b) No provision of this Guarantee shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent to act in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF Guarantee.
The recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee.
ARTICLE 4
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11
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any state or territory
thereof or of the District of Columbia, or a corporation or other
Person permitted by the Securities and Exchange Commission to act as
an institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of
this Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold such office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed
<PAGE>
12
and has accepted such appointment by instrument in writing executed by such
Successor Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions
to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of
the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to
the Guarantee Trustee all amounts owing for fees and reimbursement of expenses
which have accrued to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders. Notwithstanding anything to the
contrary herein, the Guarantor retains all of its rights under the Indenture to
(i) extend the interest payment period on the Junior Subordinated Debt
Securities pursuant to Section 3.11 thereof and the Guarantor shall not be
obligated hereunder to make any Guarantee Payments during any Extension Period
(as defined in the certificate evidencing the Junior Subordinated Debt
Securities) with respect to the Distributions (as defined in the Declaration) on
the Securities and (ii) change the maturity date of the Junior Subordinated Debt
Securities to the extent permitted by the Indenture.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Guarantee
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Trust or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
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13
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall be absolute and unconditional and shall remain in
full force and effect until the entire liquidation amount of all outstanding
Securities shall have been paid and such obligation shall in no way be affected
or impaired by reason of the happening from time to time of any event, including
without limitation, the following, whether or not with notice to, or the consent
of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Junior
Subordinated Debt Securities or any change to the maturity date of the Junior
Subordinated Debt Securities permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) Any invalidity of, or defect or deficiency in, the
Securities;
(f) The settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Guarantee Trustee or the Holders
to give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation,
or any defense of any kind or nature that the Guarantor has or may have against
any Holder shall be available
<PAGE>
14
hereunder to the Guarantor against such Holder to reduce the payments to it
under this Guarantee.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of at least a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then
any Holder of Securities may, subject to the subordination provisions of Section
6.2, institute a legal proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder of Securities may, subject to the subordination provisions of Section
6.2, directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the principal
of or interest on the Junior Subordinated Debt Securities on or after the
respective due dates specified in the Junior Subordinated Debt Securities, and
the amount of the payment will be based on the Holder's pro rata share of the
amount due and owing on all of the Securities. The Guarantor hereby waives any
right or remedy to require that any action on this Guarantee be brought first
against the Trust or any other person or entity before proceeding directly
against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Securities against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee, if at the time of any such payment,
any amounts are due and unpaid under this Guarantee. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Guarantee Trustee for the benefit of the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the
occurrence of any event referred to in subsections 5.3(a) through 5.3(g),
inclusive, hereof.
<PAGE>
15
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Securities remain outstanding, if (i) there shall
have occurred an event of default under the Indenture with respect to the Junior
Subordinated Debt Securities, (ii) there shall be a Guarantee Event of Default
or (iii) the Guarantor shall have given notice of its election of an Extension
Period as provided in the certificate evidencing the Junior Subordinated Debt
Securities and shall not have rescinded such notice, or such Extension Period or
any extension thereof shall be continuing, then the Guarantor shall not, and
shall not permit any subsidiary of the Guarantor, to (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Guarantor's capital stock or (y)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor that rank on a parity
with or junior in interest to the Junior Subordinated Debt Securities or make
any guarantee payments with respect to any guarantee by the Guarantor of the
debt securities of any subsidiary of the Guarantor if such guarantee ranks on a
parity with or junior in interest to the Junior Subordinated Debt Securities
(other than (a) dividends or distributions in common stock of the Guarantor, (b)
payments under this Guarantee, (c) any declaration of a dividend in connection
with the implementation of a shareholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, and (d) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's benefit plans).
SECTION 6.2 RANKING.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Debt (as defined in the Indenture) of the Guarantor in the same manner and to
the same extent as set forth in Article XIII of the Indenture.
SECTION 6.3 SUBORDINATION OF COMMON SECURITIES.
If a Trust Enforcement Event has occurred and is continuing under
the Declaration, the rights of the holders of the Common Securities to receive
Guarantee Payments hereunder shall be subordinated to the rights of the Holders
of the Preferred Securities to receive Guarantee Payments under this Guarantee.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
<PAGE>
16
This Guarantee shall terminate upon (i) full payment of the
Redemption Price of all Securities, (ii) distribution of the Junior Subordinated
Debt Securities to the Holders of all the Securities or (iii) full payment of
the amounts payable in accordance with the Declaration upon liquidation of the
Trust. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Securities must restore payment of any sums paid under the Securities or
under this Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage, liability, expense or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Securities might
properly be paid.
SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Guarantee.
<PAGE>
17
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Securities then
outstanding.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee may not be amended without the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Securities. The
provisions of Section 11.2 of the Declaration with respect to meetings of, and
action by written consent of, the Holders of the Securities apply to the giving
of such approval.
SECTION 9.3 NOTICES.
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered by hand,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Guarantor and the Holders of the Securities):
[INSERT NAME, ADDRESS, FAX NUMBER]
(b) If given to the Guarantor, at the Guarantor's mailing addresses
set forth below (or such other address as the Guarantor may give notice of to
the Guarantee Trustee and the Holders of the Securities):
[INSERT NAME, ADDRESS AND FAX NUMBER]
(c) If given to any Holder of Securities, at the address set forth
on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
<PAGE>
18
SECTION 9.4 BENEFIT.
This Guarantee is solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable from
the Securities.
SECTION 9.5 GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY; THE SIGNATURE PAGE
FOLLOWS.]
<PAGE>
19
IN WITNESS WHEREOF, this Guarantee is executed as of the day and
year first above written.
BANK UNITED CORP.,
as Guarantor
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
BANK OF NEW YORK,
as Guarantee Trustee
By: _____________________________________
Name:
Title:
EXHIBIT 12.1
BANK UNITED CORP.
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
MARCH 31, FOR THE YEAR ENDED SEPTEMBER 30,
-------------------- -----------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS
Income before income taxes, minority
interest, and extraordinary loss... $ 98,977 $ 67,649 $ 158,353 $ 157,833 $ 67,836 $ 90,111 $ 86,081
Fixed charges, excluding interest
expense on deposits................ 177,015 163,842 316,947 290,377 320,450 296,623 119,906
--------- --------- --------- --------- --------- --------- ---------
Income before income taxes and fixed
charges............................ $ 275,992 $ 231,491 $ 475,300 $ 448,210 $ 388,286 $ 386,734 $ 205,987
========= ========= ========= ========= ========= ========= =========
FIXED CHARGES
Interest expense, excluding interest
expense on deposits................ $ 174,102 $ 161,174 $ 311,905 $ 283,303 $ 312,558 $ 288,394 $ 111,890
One-third net rental expense......... 2,696 2,467 4,641 6,172 6,892 7,253 7,039
Amortization of debt expense......... 217 201 401 902 1,000 976 977
--------- --------- --------- --------- --------- --------- ---------
Total fixed charges, excluding
interest expense on deposits....... $ 177,015 $ 163,842 $ 316,947 $ 290,377 $ 320,450 $ 296,623 $ 119,906
--------- --------- --------- --------- --------- --------- ---------
Bank Preferred Stock Series A
dividends, pre-tax basis........... 6,911 6,922 13,826 14,058 14,711 14,011 14,006
Bank Preferred Stock Series B
dividends, pre-tax basis........... 7,668 7,680 15,339 15,597 16,321 3,152 --
--------- --------- --------- --------- --------- --------- ---------
Combined fixed charges and Preferred
Stock dividends (Series A and B)... $ 191,594 $ 178,444 $ 346,112 $ 320,032 $ 351,482 $ 313,786 $ 133,912
========= ========= ========= ========= ========= ========= =========
Earnings to fixed charges ratio,
excluding interest expense on
deposits........................... 1.56 1.41 1.50 1.54 1.21 1.30 1.72
Earnings to combined fixed charges
and Preferred Stock dividends,
excluding interest expense on
deposits........................... 1.44 1.30 1.37 1.40 1.10 1.23 1.54
EARNINGS
Income before income taxes, minority
interest, and extraordinary loss... $ 98,977 $ 67,649 $ 158,353 $ 157,833 $ 67,836 $ 90,111 $ 86,081
Fixed charges, including interest
expense on deposits................ 322,085 305,847 617,707 553,138 592,670 560,989 328,940
--------- --------- --------- --------- --------- --------- ---------
Income before income taxes and fixed
charges............................ $ 421,062 $ 373,496 $ 776,060 $ 710,971 $ 660,506 $ 651,100 $ 415,021
========= ========= ========= ========= ========= ========= =========
FIXED CHARGES
Interest expense, including interest
expense on deposits................ $ 319,172 $ 303,179 $ 612,665 $ 546,064 $ 584,778 $ 552,760 $ 320,924
One-third net rental expenses........ 2,696 2,467 4,641 6,172 6,892 7,253 7,039
Amortization of debt expense......... 217 201 401 902 1,000 976 977
--------- --------- --------- --------- --------- --------- ---------
Total fixed charges, including
interest expense on deposits....... $ 322,085 $ 305,847 $ 617,707 $ 553,138 $ 592,670 $ 560,989 $ 328,940
--------- --------- --------- --------- --------- --------- ---------
Bank Preferred Stock Series A
dividends, pre-tax basis........... 6,911 6,922 13,826 14,058 14,711 14,011 14,006
Bank Preferred Stock Series B
dividends, pre-tax basis........... 7,668 7,680 15,339 15,597 16,321 3,152 --
--------- --------- --------- --------- --------- --------- ---------
Combined fixed charges and Preferred
Stock dividends (Series A and B)... $ 336,664 $ 320,449 $ 646,872 $ 582,793 $ 623,702 $ 578,152 $ 342,946
========= ========= ========= ========= ========= ========= =========
Earnings in fixed charges ratio,
including interest expense on
deposits........................... 1.31 1.22 1.26 1.29 1.11 1.16 1.26
Earnings to combined fixed charges
and Preferred Stock dividends,
including interest expense on
deposits........................... 1.25 1.17 1.20 1.22 1.06 1.13 1.21
</TABLE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to the
Registration Statement No. 333-75937 of Bank United Corp. on Form S-3 of our
report dated October 21, 1998, appearing in the Annual Report on Form 10-K of
Bank United Corp. for the year ended September 30, 1998 and to the reference to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
May 27, 1999
EXHIBIT 25.1
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive (Zip code)
offices)
------------------------
Bank United Capital Trust
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
(Address of principal executive (Zip code)
offices)
------------------------
Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
NAME ADDRESS
- ------------------------------------- -----------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York,
of New York........................ N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York..... 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation........................
New York Clearing House New York, New York 10005
Association........................
(B) WHETHER IT IS AUTHORIZED TO EXERCISE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE EACH SUCH AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051).
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
- 2 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 15th day of April, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
- -------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y.
10286
And Foreign and Domestic
Subsidiaries.
a member of the Federal Reserve
System, at the close of business
December 31, 1998, published in
accordance with a call made by the
Federal Reserve Bank of this District
pursuant to the provisions of the
Federal Reserve Act.
DOLLAR AMOUNTS
IN THOUSANDS
--------------
ASSETS
Cash and balances due from depository
institutions:.......................
Noninterest-bearing balances and
currency and coin................. $3,951,273
Interest-bearing balances........... 4,134,162
Securities:..........................
Held-to-maturity securities......... 932,468
Available-for-sale securities....... 4,279,246
Federal funds sold and Securities
purchased under agreements to
resell.............................. 3,161,626
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................ 37,861,802
LESS: Allowance for loan and lease
losses............................ 619,791
LESS: Allocated transfer risk
reserve........................... 3,572
Loans and leases, net of unearned
income, allowance and reserve..... 37,238,439
Trading Assets....................... 1,551,556
Premises and fixed assets (including
capitalized leases)................. 684,181
Other real estate owned.............. 10,404
Investments in unconsolidated subsi-
diaries and associated companies.... 196,032
Customers liability to this bank on
acceptances outstanding............. 895,160
Intangible assets.................... 1,127,375
Other assets......................... 1,915,742
--------------
Total assets......................... $60,077,664
==============
LIABILITIES
Deposits:............................
In domestic offices................. $27,020,578
Noninterest-bearing................. 11,271,304
Interest-bearing.................... 15,749,274
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs.............................. 17,197,743
Noninterest-bearing................. 103,007
Interest-bearing.................... 17,094,736
Federal funds purchased and
Securities sold under agreements to
repurchase.......................... 1,761,170
Demand notes issued to the U.S.
Treasury............................ 125,423
Trading liabilities.................. 1,625,632
Other borrowed money:
With remaining maturity of one year
or less........................... 1,903,700
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years....................... 31,639
Bank's liability on acceptances
executed and outstanding............ 900,390
Subordinated notes and debentures.... 1,308,000
Other liabilities.................... 2,708,852
--------------
Total liabilities.................... 54,583,127
--------------
EQUITY CAPITAL
Common stock......................... 1,135,284
Surplus.............................. 764,443
Undivided profits and capital
reserves............................ 3,542,168
Net unrealized holding gains (losses)
on available-for-sale securities.... 82,367
Cumulative foreign currency
translation adjustments............. (29,725)
--------------
Total equity capital................. 5,494,537
--------------
Total liabilities and equity
capital............................. $60,077,664
==============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi }
Gerald L. Hassell} Directors
Alan R. Griffith }
EXHIBIT 25.2
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive (Zip code)
offices)
------------------------
Bank United Corp.
(Exact name of obligor as specified in its charter)
Delaware 13-3528556
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
(Address of principal executive (Zip code)
offices)
------------------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
NAME ADDRESS
- ------------------------------------- -----------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York,
of New York........................ N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York..... 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation........................
New York Clearing House New York, New York 10005
Association........................
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051).
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
- 2 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 15th day of April, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
- ------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y.
10286
And Foreign and Domestic
Subsidiaries.
a member of the Federal Reserve
System, at the close of business
December 31, 1998, published in
accordance with a call made by the
Federal Reserve Bank of this District
pursuant to the provisions of the
Federal Reserve Act.
DOLLAR AMOUNTS
IN THOUSANDS
--------------
ASSETS
Cash and balances due from depository
institutions:.......................
Noninterest-bearing balances and
currency and coin................. $3,951,273
Interest-bearing balances........... 4,134,162
Securities:..........................
Held-to-maturity securities......... 932,468
Available-for-sale securities....... 4,279,246
Federal funds sold and Securities
purchased under agreements to
resell.............................. 3,161,626
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................ 37,861,802
LESS: Allowance for loan and lease
losses............................ 619,791
LESS: Allocated transfer risk
reserve........................... 3,572
Loans and leases, net of unearned
income, allowance and reserve..... 37,238,439
Trading Assets....................... 1,551,556
Premises and fixed assets (including
capitalized leases)................. 684,181
Other real estate owned.............. 10,404
Investments in unconsolidated subsi-
diaries and associated companies.... 196,032
Customers liability to this bank on
acceptances outstanding............. 895,160
Intangible assets.................... 1,127,375
Other assets......................... 1,915,742
--------------
Total assets......................... $60,077,664
==============
LIABILITIES
Deposits:............................
In domestic offices................. $27,020,578
Noninterest-bearing................. 11,271,304
Interest-bearing.................... 15,749,274
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs.............................. 17,197,743
Noninterest-bearing................. 103,007
Interest-bearing.................... 17,094,736
Federal funds purchased and
Securities sold under agreements to
repurchase.......................... 1,761,170
Demand notes issued to the U.S.
Treasury............................ 125,423
Trading liabilities.................. 1,625,632
Other borrowed money:
With remaining maturity of one year
or less........................... 1,903,700
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years....................... 31,639
Bank's liability on acceptances
executed and outstanding............ 900,390
Subordinated notes and debentures.... 1,308,000
Other liabilities.................... 2,708,852
--------------
Total liabilities.................... 54,583,127
--------------
EQUITY CAPITAL
Common stock......................... 1,135,284
Surplus.............................. 764,443
Undivided profits and capital
reserves............................ 3,542,168
Net unrealized holding gains (losses)
on available-for-sale securities.... 82,367
Cumulative foreign currency
translation adjustments............. (29,725)
--------------
Total equity capital................. 5,494,537
--------------
Total liabilities and equity
capital............................. $60,077,664
==============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi }
Gerald L. Hassell} Directors
Alan R. Griffith }
EXHIBIT 25.3
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive (Zip code)
offices)
------------------------
Bank United Corp.
(Exact name of obligor as specified in its charter)
Delaware 13-3528556
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
(Address of principal executive (Zip code)
offices)
------------------------
Guarantee of Trust Preferred Securities of
Bank United Capital Trust
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
NAME ADDRESS
- ------------------------------------- -----------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York,
of New York........................ N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York..... 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation........................
New York Clearing House New York, New York 10005
Association........................
(B) WHETHER IT IS AUTHORIZED TO EXERCISE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE EACH SUCH AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051).
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
- 2 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 15th day of April, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
- -------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y.
10286
And Foreign and Domestic
Subsidiaries.
a member of the Federal Reserve
System, at the close of business
December 31, 1998, published in
accordance with a call made by the
Federal Reserve Bank of this District
pursuant to the provisions of the
Federal Reserve Act.
DOLLAR AMOUNTS
IN THOUSANDS
--------------
ASSETS
Cash and balances due from depository
institutions:.......................
Noninterest-bearing balances and
currency and coin................. $3,951,273
Interest-bearing balances........... 4,134,162
Securities:..........................
Held-to-maturity securities......... 932,468
Available-for-sale securities....... 4,279,246
Federal funds sold and Securities
purchased under agreements to
resell.............................. 3,161,626
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................ 37,861,802
LESS: Allowance for loan and lease
losses............................ 619,791
LESS: Allocated transfer risk
reserve........................... 3,572
Loans and leases, net of unearned
income, allowance and reserve..... 37,238,439
Trading Assets....................... 1,551,556
Premises and fixed assets (including
capitalized leases)................. 684,181
Other real estate owned.............. 10,404
Investments in unconsolidated subsi-
diaries and associated companies.... 196,032
Customers liability to this bank on
acceptances outstanding............. 895,160
Intangible assets.................... 1,127,375
Other assets......................... 1,915,742
--------------
Total assets......................... $60,077,664
==============
LIABILITIES
Deposits:............................
In domestic offices................. $27,020,578
Noninterest-bearing................. 11,271,304
Interest-bearing.................... 15,749,274
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs.............................. 17,197,743
Noninterest-bearing................. 103,007
Interest-bearing.................... 17,094,736
Federal funds purchased and
Securities sold under agreements to
repurchase.......................... 1,761,170
Demand notes issued to the U.S.
Treasury............................ 125,423
Trading liabilities.................. 1,625,632
Other borrowed money:
With remaining maturity of one year
or less........................... 1,903,700
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years....................... 31,639
Bank's liability on acceptances
executed and outstanding............ 900,390
Subordinated notes and debentures.... 1,308,000
Other liabilities.................... 2,708,852
--------------
Total liabilities.................... 54,583,127
--------------
EQUITY CAPITAL
Common stock......................... 1,135,284
Surplus.............................. 764,443
Undivided profits and capital
reserves............................ 3,542,168
Net unrealized holding gains (losses)
on available-for-sale securities.... 82,367
Cumulative foreign currency
translation adjustments............. (29,725)
--------------
Total equity capital................. 5,494,537
--------------
Total liabilities and equity
capital............................. $60,077,664
==============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi }
Gerald L. Hassell} Directors
Alan R. Griffith }
