Exhibit 10.11


 


EXECUTION
COPY


 


THIS
TRANSACTION FEE AGREEMENT is dated May 21, 2009 (this “Agreement”) and
is among BU Financial Holdings LLC, a Delaware limited liability company (the “Company”),
Blackstone Management Partners L.L.C. (“Blackstone”), Carlyle Investment
Management L.L.C. (“Carlyle”), Centerbridge Advisors, LLC (“Centerbridge”)
and WL Ross & Co. LLC (“WL Ross”). Each of Blackstone, Carlyle,
Centerbridge and WL Ross are referred to herein as a “Key Party” and
collectively as the “Key Parties”.


 


BACKGROUND


 


1.             BankUnited, an indirect wholly-owned subsidiary of the
Company (“NewBank”), entered into a Purchase and Assumption Agreement
(as amended, restated, supplemented or otherwise modified, the “P&A
Agreement”) dated as of May 21, 2009, by and among NewBank, the
Federal Deposit Insurance Corporation (the “FDIC”), as receiver of BankUnited,
FSB (the “Failed Bank”), and the FDIC acting in its corporate capacity,
pursuant to which NewBank will acquire certain assets and assume certain
liabilities of the Failed Bank.


 


2.             The Key Parties have spent significant time and
resources in connection with the transactions referred to above and certain
other related transactions (collectively, the “Transactions”). The Key
Parties have conducted financial and structural analysis, due diligence
investigations, and negotiations in connection with the Transactions. Certain
investment fund affiliates of the Key Parties (the “Key Investors”) will
become beneficial owners of the Company. The Company believes that having the
Key Investors as beneficial owners of the Company will be of substantial
benefit to the Company and its subsidiaries.


 


3.             The Company believes that the benefits it derives from
the Key Parties’ efforts as described above, and the Key Investors’ investments,
warrant payment of the fees described in this Agreement.


 


AGREEMENT


 


The parties agree as follows:


 


SECTION 1.         Transaction Fees . In consideration
of the Key Parties conducting the financial and structural analysis, due
diligence investigations, and negotiations described above, the Company will
pay to each Key Party, at the Effective Time (as defined herein), the following
transaction fee:


 


(a)       to Blackstone a fee of $5,284,360.19;


 


(b)       to Carlyle a fee of $5,284,360.19;


 


(c)       to Centerbridge a fee of $4,146,919.43;
and


 


(d)       to WL Ross a fee of $5,284,360.19.


 


Signature
Page to Transaction Fee Agreement


 

















 


SECTION 2.         Indemnification.
The Company will indemnify and hold harmless each of the Key Parties, their
affiliates and their respective partners (both general and limited), members
(both managing and otherwise), officers, directors, employees, agents and
representatives (each such person being an “Indemnified Party”) from and
against any and all losses, claims, damages and liabilities, whether joint or
several (the “Liabilities”), related to, arising out of or in connection
with this Agreement, whether or not pending or threatened, whether or not an
Indemnified Party is a party, whether or not resulting in any liability and
whether or not such action, claim, suit, investigation or proceeding is
initiated or brought by the Company. The Company will reimburse any Indemnified
Party for all reasonable costs and expenses (including reasonable attorneys’
fees and expenses) as they are incurred in connection with investigating,
preparing, pursuing, defending or assisting in the defense of any action,
claim, suit, investigation or proceeding for which the Indemnified Party would
be entitled to indemnification under the terms of the previous sentence, or any
action or proceeding arising therefrom, whether or not such Indemnified Party
is a party thereto. The Company will not be liable under the foregoing
indemnification provision with respect to any particular loss, claim, damage,
liability, cost or expense of an Indemnified Party that is determined by a
court, in a final judgment from which no further appeal may be taken, to have
resulted primarily from the gross negligence or willful misconduct of such
Indemnified Party. If an Indemnified Party is reimbursed hereunder for any
expenses, such reimbursement of expenses will be refunded to the extent it is
finally judicially determined that the Liabilities in question resulted
primarily from the gross negligence or willful misconduct of such Indemnified
Party.


 


SECTION 3.         Effective Time.
This Agreement will become effective (the “Effective Time”) as of the
date hereof At the Effective Time, the Company will make the payments to the
Key Parties pursuant to Section 1 by
wire transfer of same-day funds to the bank account designated by the payee in
writing.


 


SECTION 4.         Term. This Agreement
will remain in effect as of and from the Effective Time until payment in full
of the transaction fee described in Section 1 in accordance with Section 3.
The provisions of Sections 2, 5 and 6 will survive the termination of this
Agreement.


 


SECTION 5.         Permissible Activities.
Subject to applicable law, nothing herein will in any way preclude the Key
Parties or their affiliates (other than the Company or its subsidiaries and
their respective employees) or their partners (both general and limited),
members (both managing and otherwise), officers, directors, employees, agents
or representatives from engaging in any business activities or from performing
services for its or their own account or for the account of others, including
for companies that may be in competition with the business conducted by the
Company, other than as set forth in that certain Amended and Restated Limited
Liability Company Agreement of BU Financial Holdings LLC dated as of May 21,
2009 by and among the Company and the other parties signatories thereto
(including, without limitation, Sections 3.7(c) and (d) thereof);
provided, that this section shall not be construed to authorize the breach of
any commitment or of any rebuttal of control agreement made by a Key Investor
with the Office of Thrift Supervision or Federal Deposit Insurance Corporation.


 


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SECTION 6.         Miscellaneous


 


(a)       No amendment or waiver of any provision
of this Agreement, or consent to any departure by any party hereto from any
such provision, will be effective unless it is in writing and signed by the
parties hereto. Any amendment, waiver or consent will be effective only in the
specific instance and for the specific purpose for which given. The waiver by
any party of any breach of this Agreement will not operate as or be construed
to be a waiver by such party of any subsequent breach.


 


(b)       Any notices or other communications
required or permitted hereunder will be sufficiently given if delivered
personally or sent by facsimile with confirmed receipt, or by overnight
courier, addressed as follows or to such other address of which the parties may
have given written notice:


 


if to Blackstone:


 


Blackstone Management Partners L.L.C.


345 Park Avenue


31st Floor


New York, New York 10154


Attention: Chinh E Chu


Facsimile: (212) 583-3722


 


with a copy (which will not constitute notice) to:


 


Simpson Thacher & Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Attention: William R Dougherty


Facsimile: (212) 455-2502


 


if to Carlyle:


 


c/o The Carlyle Group


520 Madison Avenue


New York, New York 10022


Attention: John C. Redett


Facsimile: (212) 813-4789


 


with a copy (which will not constitute notice) to:


 


Simpson Thacher & Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Attention: Maripat Alpuche


Facsimile: (212) 455-2502


 


if to Centerbridge:


 


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Centerbridge Advisors, LLC


375 Park Avenue


New York, New York 10152


Attention: Lance West


Facsimile: (212) 672-4562


 


with a copy (which will not constitute notice) to:


 


Simpson Thacher & Bartlett LLP


425 Lexington Avenue


New York, New York 10017


Attention: Wilson S. Neely


Caroline B. Gottschalk


Facsimile: (212) 455-2502


 


if to WL Ross:


 


WL Ross & Co. LLC


1166 Avenue of the Americas


New York, New York 10035


Attention: Michael J. Gibbons (CFO)


 


Wachtell, Lipton, Rosen & Katz


51 West 52na Street


New York, New York 10019


Attention:              Nicholas
G. Demmo


 Matthew M. Guest


Facsimile: (212) 403-2000


 


if to the Company:


 


BU Financial Holdings LLC


32 Adelaide Ave


East Moriches, New York 11940


Attention: John Kanas


Facsimile: (631) 874-3549


 


Unless otherwise specified
herein, such notices or other communications will be deemed received (i) on
the date delivered, if delivered personally or sent by facsimile with confirmed
receipt, and (ii) one business day after being sent by overnight courier.


 


(c)       This Agreement will constitute the entire
agreement between the parties with respect to the subject matter hereof, and
will supersede all previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings relating hereto.


 


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(d)       This Agreement shall be deemed to be made
in and in all respects shall be interpreted, construed and governed by and in
accordance with the laws of the State of New York. The parties hereby
irrevocably submit to the personal jurisdiction of the courts of the State of
New York located in the Borough of Manhattan, and the Federal courts of the
United States of America located in the State of New York, Borough of
Manhattan, in respect of the interpretation and enforcement of the provisions
of this Agreement, and in respect of the transactions contemplated hereby, and
hereby waive, and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in such courts or that the
venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the parties hereto irrevocably
agree that all claims with respect to such action or proceeding shall be heard
and determined in any such court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and, to the extent
permitted by law, over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in herein or in such other manner as may be
permitted by law shall be valid and sufficient service thereof.


 


(e)       Each party acknowledges and agrees that
any controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or relating to this Agreement. Each party certifies and acknowledges that
(i) no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver, (ii) each party understands
and has considered the implications of this waiver, (iii) each party makes this
waiver voluntarily and (iv) each party has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications
expressed above.


 


(f)        The provisions of this Agreement will be
binding upon and inure to the benefit of the parties hereto and their permitted
transferees and their respective successors, each of which permitted
transferees will agree, in writing in form and substance satisfactory to the
Key Parties, to become a party hereto and be bound to the same extent as its
transferor hereby. Subject to the next sentence, no person other than the
parties hereto and their successors and permitted assigns is intended to be a
beneficiary of this Agreement. The parties acknowledge and agree that the Key
Investors and their and the Key Parties’ affiliates and partners (both general
and limited), members (both managing and otherwise), officers, directors,
employees, agents and representatives are intended to be third-party
beneficiaries under Section 2 of this Agreement.


 


(g)       This Agreement may be executed by one or
more parties to this Agreement on any number of separate counterparts
(including by facsimile), and all of said counterparts taken together will be
deemed to constitute one and the same instrument.


 


(h)       Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition 


 


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or unenforceability in
any jurisdiction will not invalidate or render unenforceable such provision in
any other jurisdiction.


 


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IN WITNESS WHEREOF, the
undersigned have executed, or have caused to executed, this Transaction Fee
Agreement on the date first written above.


 


 


	
   

  	
  BU FINANCIAL HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John A. Kanas

  
	
   

  	
   

  	
  Name: John A. Kanas

  
	
   

  	
   

  	
  Title:

  



 


Signature
Page to Transaction Fee Agreement


 

















 


IN WITNESS WHEREOF, the
undersigned have executed, or have caused to executed, this Transaction Fee
Agreement on the date first written above.


 


 


	
   

  	
  BLACKSTONE MANAGEMENT
  PARTNERS L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chinh E. Chu

  
	
   

  	
   

  	
  Name:  Chinh E.
  Chu

  
	
   

  	
   

  	
  Title:  Senior
  Managing Director

  



 


Signature
Page to Transaction Fee Agreement


 

















 


IN WITNESS WHEREOF, the
undersigned have executed, or have caused to executed, this Transaction Fee
Agreement on the date first written above.


 


 


	
   

  	
  CARLYLE INVESTMENT
  MANAGEMENT L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel A. D’Anrello

  
	
   

  	
   

  	
  Name:  Daniel A.
  D’Anrello

  
	
   

  	
   

  	
  Title:  Managing
  Director

  



 


Signature
Page to Transaction Fee Agreement


 

















 


IN WITNESS WHEREOF, the
undersigned have executed, or have caused to executed, this Transaction Fee
Agreement on the date first written above.


 


 


	
   

  	
  CENTERBRIDGE ADVISORS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Centerbridge Partners, L.P.,
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Centerbridge Partners
  Holdings, LLC, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lance West

  
	
   

  	
   

  	
  Name:  Lance West

  
	
   

  	
   

  	
  Title:  Senior
  Managing Director

  



 


Signature
Page to Transaction Fee Agreement


 

















 


IN WITNESS WHEREOF, the
undersigned have executed, or have caused to executed, this Transaction Fee
Agreement on the date first written above.


 


 


	
   

  	
  WL ROSS & CO. LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wilbur L. Ross, Jr.

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature
Page to Transaction Fee Agreement