Purchase Agreement dated February 24, 2004



 Exhibit 4.5 
  

$100,000,000 Principal Amount 
  
 BANKUNITED FINANCIAL CORPORATION 
  
 3.125% Convertible Senior Notes 
  
 due 2034 
  
 PURCHASE AGREEMENT 
  
 February 24, 2004 







 PURCHASE AGREEMENT 
  

February 24, 2004 
  
 BEAR, STEARNS & CO. INC. 
 UBS SECURITIES LLC 
as Initial Purchasers 
 c/o Bear, Stearns & Co. Inc. 

383 Madison Avenue 
 New York, New York 10179 
  
 Dear Sirs and
Mesdames: 
  
 BankUnited Financial Corporation, a Florida
corporation, (the “Company”), proposes to issue and sell to the initial purchasers named in Schedule A hereto (the “Initial Purchasers”) $100,000,000 aggregate principal amount of its 3.125% Convertible Senior Notes
due 2034 (the “Firm Notes”). In addition, the Company proposes to grant to the Initial Purchasers the option to purchase from the Company up to an additional $20,000,000 aggregate principal amount of the Company’s 3.125%
Convertible Senior Notes due 2034 (the “Additional Notes”). The Firm Notes and the Additional Notes are hereinafter collectively sometimes referred to as the “Notes.” 
  
 The Notes are to be issued pursuant to an indenture (the
“Indenture”) to be dated as of February 27, 2004, between the Company and U.S. Bank Trust National Association, as trustee (the “Trustee”). The Notes will be convertible in accordance with their terms and the terms
of the Indenture into shares of the Class A Common Stock (the “Common Stock”) of the Company, par value $0.01 per share (the “Shares”). 
  
 The Notes and the Shares will be offered without being registered under the Securities Act of 1933, as amended (the
“Securities Act”), to “qualified institutional buyers” in compliance with the exemption from registration provided by Rule 144A under the Securities Act (“Rule 144A”). 
  
 The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement to be entered into at or prior to the time of purchase (as defined herein) between the Company and the Initial Purchasers (the “Registration Rights Agreement”). 

 
 In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum (the “Preliminary Memorandum”) and will prepare a final offering 







 memorandum (the “Final Memorandum” and, with the Preliminary Memorandum, each a
“Memorandum”) including or incorporating by reference a description of the terms of the Notes and the Shares, the terms of the offering and a description of the Company. As used herein, the term “Memorandum” shall include
in each case the documents incorporated by reference therein, if any. The terms “supplement”, “amendment” and “amend” as used herein with respect to a Memorandum shall include all documents deemed to be incorporated by
reference in such Memorandum, if any, that are filed subsequent to the date of such Memorandum with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). 
  
 The Company and the Initial
Purchasers agree as follows: 
  
 1. Sale and Purchase:
Upon the basis of the warranties and representations and subject to the other terms and conditions herein set forth, the Company agrees to sell to the Initial Purchasers, and each of the Initial Purchasers, severally and not jointly, agrees to
purchase from the Company, the aggregate principal amount of Firm Notes set forth opposite the name of such Initial Purchaser in Schedule A hereto at a purchase price of 97.5% of the principal amount thereof. 
  
 In addition, the Company hereby grants to the several Initial Purchasers the
option to purchase from time to time, pursuant to the terms set forth below, and upon the basis of the representations and warranties and subject to the other terms and conditions herein set forth, each Initial Purchaser shall have the right to
purchase from time to time from the Company, at a purchase price of 97.5% of the principal amount thereof, plus accrued interest, if any, from the time of purchase (as hereinafter defined) to the additional time of purchase (as hereinafter defined),
Additional Notes in an aggregate principal amount proportional to the aggregate principal amount of Firm Notes set forth opposite such Initial Purchaser’s name on Schedule A hereto. The option granted hereunder may be exercised at any time and
from time to time by Bear, Stearns & Co. Inc. (“Bear Stearns”), on behalf of the Initial Purchasers, and the Company shall deliver such Additional Notes not more than thirteen days subsequent to the date the Firm Notes are
issued upon notice by the Initial Purchasers to the Company, which notice may be given from time to time on one or more occasions. Such notice shall set forth the aggregate initial principal amount of Additional Notes as to which the option is being
exercised, and the date and time when the Additional Notes are to be delivered (such date and time being herein referred to as the “additional time of purchase”); provided, however, that the additional time of purchase shall
not be earlier than (i) the time of purchase or (ii) the second business day after the date on which the option shall have been exercised nor later than the tenth business day after the date on which the option shall have been exercised. As used
herein, “business day” shall mean a day on which the Nasdaq National Market (the “NASDAQ”) is open for trading. 
  
 2. Payment and Delivery: Payment of the purchase price for the Firm Notes shall be made to the Company by Federal (same day) funds, against
delivery of the Firm Notes to you, at the offices of Simpson Thacher & Bartlett LLP in New York, New York, or at such other place as may be agreed upon by the parties hereto, for the respective accounts of the Initial Purchasers. Such payment
and delivery shall be made at 10:00 A.M., eastern daylight time, on February 27, 2004 (unless another time shall be agreed to by you and the Company). The time at which such payment and delivery are actually made is herein sometimes called the
“time of purchase.” 
  

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 Payment of the purchase price for the Additional Notes shall be made at the additional time of purchase
in the same manner and at the same office and time of day as the payment for the Firm Notes. 
  
 Certificates for the Notes shall be in definitive form or global form, as specified by you, and registered in the names and in such denominations as you shall request in writing not later than one full business day
prior to the time of purchase or the additional time of purchase, as the case may be. For the purpose of expediting the checking of the certificates for the Notes by you, the Company agrees to make such certificates available to you for such purpose
at least one full business day preceding the time of purchase or the additional time of purchase, as the case may be. 
  
 3. Representations and Warranties of the Company: The Company represents and warrants to each of the Initial Purchasers that: 
  
 (a) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in any Memorandum complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (ii) the Preliminary
Memorandum, as of its date did not and as of the time of execution of this Agreement does not, and the Final Memorandum, as amended or supplemented, prior to the time of purchase will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that any representations and warranties set forth in this paragraph do not
apply to statements or omissions in any Memorandum based upon information relating to any Initial Purchaser furnished to the Company in writing by or on behalf of such Initial Purchaser expressly for use therein; 
  
 (b) As of the date of this Agreement, the Company has an
authorized and outstanding capitalization as set forth under the column heading entitled “Actual” in the section of the Final Memorandum entitled “Capitalization” and, as adjusted to give effect to the offering of the Firm Notes
and the application of the net proceeds therefrom as described in the “Use of Proceeds” section of the Final Memorandum, the Company would, as of December 31, 2003, have had an authorized and outstanding capitalization as set forth under
the column heading entitled “As Adjusted” in the section of the Final Memorandum entitled “Capitalization”; all of the issued and outstanding shares of capital stock, including the Common Stock, of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of any statutory or contractual preemptive rights, resale rights, rights
of first refusal or similar rights; 
  
 (c) The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida, with full corporate power and authority to own, lease and operate its properties and to conduct its business as
described in the Memorandum; 
  

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 (d) The Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate,
have a material adverse effect on the business, properties, financial condition, results of operation or prospects of the Company and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); and the
Company is in compliance in all respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not have a Material Adverse Effect; 
  
 (e) The subsidiaries of the Company (within the meaning of
Rule 405 under the Securities Act) are listed as Exhibit D (the “Subsidiaries”); each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Memorandum; each Subsidiary is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate,
have a Material Adverse Effect; each of the Subsidiaries are in compliance in all respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not
have a Material Adverse Effect; all of the issued and outstanding shares of capital stock of the Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (any “Lien”); 
  
 (f) Neither the Company nor any of the Subsidiaries is in breach or violation of, or in default under (nor has any event occurred which
with notice, lapse of time, or both would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or person acting on such holder’s behalf), the right to require the repurchase, redemption or
repayment of all or part of such indebtedness under) its respective charter or by-laws or any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by which any of them or their respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company or any of the Subsidiaries, and the execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Notes and consummation of the transactions contemplated hereby and
thereby including the issuance of the Notes and the issuance of the Shares upon conversion of the Notes, will not conflict with, result in any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of
time or both would result in 
  

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 any breach or violation of or constitute a default under), (i) the charter or by-laws of the Company or
any of the Subsidiaries or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or their respective properties may be bound or affected, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of the Subsidiaries
except (in the case of clauses (ii) and (iii) above) as would not, individually or in the aggregate, have a Material Adverse Effect; 
  
 (g) The Indenture has been duly authorized by the Company and when duly executed and delivered by the Company and duly authorized,
executed and delivered by the Trustee will be a legal, valid and binding agreement of the Company, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors’ rights generally and general principles of equity; 
  
 (h) The Registration Rights Agreement has been duly authorized by the Company and when executed and delivered by the Company and duly
authorized, executed and delivered by the Initial Purchasers will be a legal, valid and binding agreement of the Company, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and general principles of equity; 
  
 (i) The Notes have been duly authorized by the Company and when executed and delivered by the Company and duly authenticated by the
Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof will constitute legal, valid and binding obligations of the Company, enforceable in accordance with
their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and general principles of equity, and will be
entitled to the benefits of the Indenture and the Registration Rights Agreement; the Shares initially issuable upon conversion of the Notes have been duly authorized and validly reserved for issuance upon conversion of the Notes, and upon conversion
of the Notes in accordance with their terms and the terms of the Indenture will be issued free of statutory and contractual preemptive rights and are sufficient in number to meet the current conversion requirements, and such Shares, when so issued
upon such conversion in accordance with the terms of the Indenture, will be duly and validly issued and fully paid and non-assessable; 
  
 (j) This Agreement has been duly authorized, executed and delivered by the Company; 
  
 (k) The terms of the Notes, the Registration Rights
Agreement, the Indenture and the capital stock of the Company, including the Shares, conform in all material respects to the description thereof contained or incorporated by reference in the Final Memorandum; 
  

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 (l) No approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with the rules of the NASDAQ, or approval of stockholders of the Company, is required in connection with the issuance and sale by the Company of the
Notes or the issuance of Shares upon conversion of the Notes or the consummation of the transactions as contemplated hereby and by the Indenture, the Registration Rights Agreement and the Notes other than (i) as may be required under the securities
or blue sky laws of the various jurisdictions in which the Notes and the Shares are being offered by the Initial Purchasers or by the by-laws and rules of the National Association of Securities Dealers, Inc. (the “NASD”) or NASD
Regulation, Inc. in connection with the purchase of the Notes by the Initial Purchasers and (ii) as may be required by federal and state securities laws with respect to the Company’s obligations under the Registration Rights Agreement and the
listing of the Shares on the NASDAQ in connection therewith; 
  
 (m) The Company has obtained for the benefit of the Initial Purchasers the agreement (a “Lock-Up Agreement”), in the form set forth as Exhibit B hereto, of each of its executive officers and
directors named in Exhibit B-1 hereto; 
  
 (n) Except as described in the Memorandum, (i) no person has any preemptive rights or similar rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company and (ii) no person has
the right to act as an initial purchaser or as a financial advisor to the Company in connection with the offer and sale of the Notes, in the case of each of the foregoing clauses (i) and (ii), whether as a result of the sale of the Notes as
contemplated hereby or otherwise; and except as described in the Memorandum, no person has the right, contractual or otherwise, to cause the Company to include any shares of Common Stock or shares of any other capital stock or other securities of
the Company in the registration statement to be filed with the Commission pursuant to the Registration Rights Agreement, whether as a result of the sale of the Notes as contemplated hereby or otherwise; 
  
 (o) PricewaterhouseCoopers LLP, whose reports on the
consolidated financial statements of the Company and the Subsidiaries are included or incorporated by reference in the Memorandum, are independent public accountants with respect to the Company as required by the Securities Act, and the applicable
published rules and regulations thereunder; 
  
 (p) Each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals (collectively, “Consents”) and has made all necessary filings required under any federal, state, local or
foreign law, regulation or rule and has obtained all necessary Consents from other persons, in order to conduct its respective business; neither the Company nor any of the Subsidiaries is in violation of, or in default under, nor has the Company or
any of the Subsidiaries received notice of any proceedings relating to revocation or modification of any such Consent or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any
of the Subsidiaries, except where such revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect; 
  

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 (q) Except as described in the Memorandum, there are no actions, suits, claims,
investigations or proceedings pending or to the knowledge of the Company threatened to which the Company or any of the Subsidiaries or any of their respective directors and officers is or would be a party or of which any of their respective
properties is or would be subject at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action suit, claim, investigation or proceeding
which if determined adversely to the Company or any Subsidiary would not result in a judgment, decree or order either (A) having, individually or in the aggregate, a Material Adverse Effect or (B) preventing the consummation by the Company of the
transactions contemplated hereby and by the Indenture, the Registration Rights Agreement and the Notes; 
  
 (r) All material tax returns required to be filed by the Company and each of the Subsidiaries have been filed, and all taxes and other
assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been paid, other than those being contested
in good faith and for which adequate reserves have been provided; 
  
 (s) The Company and each of the Subsidiaries maintains insurance covering such of its properties, operations, personnel and businesses as the Company deems adequate; such insurance insures against such losses and
risks to an extent which is adequate in accordance with customary industry practice to protect the Company and the Subsidiaries and their respective businesses; all such insurance is fully in force on the date hereof and will be fully in force at
the time of purchase and any additional time of purchase; 
  
 (t) Neither the Company nor any of the Subsidiaries has sustained since the date of the last audited financial statements included or incorporated by reference in the Memorandum any loss or interference with its
respective business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, except where the occurrence of such event would not have a Material
Adverse Effect; 
  
 (u) The Company has not sent
or received any communication regarding termination of, or intent not to renew, any of the contracts or agreements referred to, described in or incorporated by reference in the Memorandum, and no such termination or non-renewal has been threatened
by the Company or, to the Company’s knowledge, any other party to any such contract or agreement, except where such termination or non-renewal would not have a Material Adverse Effect; 
  
 (v) Neither the Company nor the Subsidiaries are engaged in
any unfair labor practice; except for matters which would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is (A) no unfair labor practice 
  

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 complaint pending or, to the Company’s knowledge, threatened against the Company or any of the
Subsidiaries before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending or threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to
the Company’s knowledge, threatened against the Company or any of the Subsidiaries and (C) no union representation dispute currently existing concerning the employees of the Company or any of the Subsidiaries and (ii) to the Company’s
knowledge, (A) no union organizing activities are currently taking place concerning the employees of the Company or any of the Subsidiaries and (B) there has been no violation of any federal, state, local or foreign law relating to discrimination in
the hiring, promotion or pay of employees, any applicable wage or hour laws or any provision of the Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules and regulations promulgated thereunder concerning the
employees of the Company or any of the Subsidiaries; 
  
 (w) The Company and each Subsidiary (i) owns or possesses adequate right to use all trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, formulae, customer lists, and know-how
and other intellectual property (including trade secrets and other proprietary or confidential information, systems or procedures, “Intellectual Property”) necessary for the conduct of their respective businesses as being conducted
and as described in the Memorandum and (ii) does not believe that the conduct of their respective businesses does or will conflict with, and have not received any notice of any claim of conflict with, any such right of others. To the best of the
Company’s knowledge, (i) all material technical information developed by and belonging to the Company or any Subsidiary which has not been patented has been kept confidential. Neither the Company nor any Subsidiary has granted or assigned to
any other person or entity any right to manufacture, have manufactured, assemble or sell the current products and services of the Company and its Subsidiaries or those products and services described in the Memorandum; and (ii) there is no
infringement by third parties of any such Intellectual Property. There is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s or any Subsidiary’s rights in or to
any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that
the Company or any Subsidiary infringes or otherwise violates any trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other fact which would form a reasonable basis for any such claim;

  
 (x) The audited financial statements included
or incorporated by reference in the Memorandum, together with the related notes and schedules, present fairly in all material respects the consolidated financial position of the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and the Subsidiaries for the periods specified and have been prepared in compliance in all material respects with the requirements of the Exchange Act and in compliance with the
requirements of generally accepted accounting principles applied on a consistent basis during the periods involved; the other financial and 
  

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 statistical data set forth or incorporated by reference in the Memorandum are accurately presented and
prepared on a basis consistent with the financial statements and books and records of the Company; and neither the Company nor the Subsidiaries have any material liabilities or obligations, direct or contingent (including any off-balance sheet
obligations), not disclosed in the Memorandum; 
  
 (y) Subsequent to the respective dates as of which information is given in the Memorandum, and except as may be otherwise stated or incorporated by reference in the Memorandum, there has not been (A) any material adverse change, or any
development involving a prospective material adverse change, in the business, properties, prospects, regulatory environment, management, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, (B) any
transaction which is material to the Company and the Subsidiaries, taken as a whole, (C) any obligation, direct or contingent (including any off-balance sheet obligations), incurred by the Company or any of the Subsidiaries, which is material to the
Company and the Subsidiaries, taken as a whole, (D) any change in the capital stock or outstanding indebtedness of the Company or the Subsidiaries or (E) any dividend or distribution of any kind declared, paid or made on the capital stock of the
Company; 
  
 (z) When the Notes are issued
pursuant to this Agreement, the Notes will not be of the same class (within the meaning of Rule 144A(d)(3)) as securities that are listed on a national securities exchange registered pursuant to Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system; 
  
 (aa)
Neither the Company nor any Affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act) (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act)
which is or would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the Notes or (ii) offered, solicited offers to buy or sold the Notes by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; 
  
 (bb) Assuming without inquiry to the accuracy of the
representations of the Initial Purchasers made herein, it is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers pursuant to this Agreement and the initial resale by the Initial Purchasers to register
the Notes or the Shares deliverable upon conversion of the Notes under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended; 
  
 (cc) Neither the Company nor any of the Subsidiaries is, nor after giving effect to the offering and sale of
the Notes and the application of the proceeds thereof as described in the Final Memorandum will any of them be, required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended; 
  

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 (dd) The Company and each of the Subsidiaries has good and marketable title to all
property (real and personal) described or incorporated by reference in the Memorandum as being owned by each of them, free and clear of all Liens; all the property described in the Memorandum as being held under lease by the Company or a Subsidiary
is held thereby under valid, subsisting and enforceable leases with such exceptions as are not material to, and do not interfere with, the use made and proposed to be made of such property by the Company and the Subsidiaries; 
  
 (ee) Except for the Registration Rights Agreement, and the
Registration Rights Agreement dated November 15, 2002 by and among BankUnited Financial Corporation and STI Investment Management, Inc., there are no contracts, agreements or understandings between the Company and any person granting such person the
right to require the Company to register any securities with the SEC; 
  
 (ff) The Company and each of the Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to
any differences; 
  
 (gg) The Company has
established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities, and such disclosure controls and procedures are effective to perform the
functions for which they were established; the Company’s auditors and the Audit Committee of the Board of Directors have been advised of: (i) any significant deficiencies in the design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls; any
material weaknesses in internal controls have been identified for the Company’s auditors; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls
or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses; 
  
 (hh) The Company has provided you true, correct, and complete copies of all documentation pertaining to any
extension of credit in the form of a personal loan made, directly or indirectly, by the Company to any director or executive officer of the Company, or to any family member or affiliate of any director or executive officer of the Company; and except
as permitted for insured depository institutions under Section 402 
  

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 of the Sarbanes-Oxley Act of 2002, since July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary: (i) extended credit, arranged to extend credit, or renewed any extension of credit, in the form of a personal loan, to or for any director or executive officer of the Company, or to or for any family member or
affiliate of any director or executive officer of the Company; or (ii) made any material modification, including any renewal thereof, to any term of any personal loan to any director or executive officer of the Company, or any family member or
affiliate of any director or executive officer, which loan was outstanding on July 30, 2002; 
  
 (ii) Any statistical and market-related data included or incorporated by reference in the Memorandum are based on or derived from sources
that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required; 
  
 (jj) Neither the Company, any of the Subsidiaries or its affiliates, or to its knowledge any of their
respective directors or officers has taken, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Notes or the Shares issued upon conversion thereof; and 
  
 (kk) There is and has been no failure on the part of the Company and the Subsidiaries or any of the officers and directors of the Company
or any of the Subsidiaries, in their capacities as such, to comply in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations in connection therewith, including without limitation Section 402 related
to loans and Sections 302 and 906 related to certifications. 
  
 (ll) The Company is duly registered as a savings and loan holding company under the Home Owners’ Loan Act, as amended; the deposit accounts of the Company’s depository institution subsidiary is insured by
the Federal Deposit Insurance Corporation (the “FDIC”) to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceedings for the termination of such insurance are pending or, to the best of the
Company’s knowledge, threatened; and neither the Company nor any of its Subsidiaries is party to or otherwise the subject of any consent decree, memorandum of understanding, written commitment or other written supervisory agreement with the
Office of Thrift Supervision (the “OTS”), the FDIC or any other federal or state authority or agency charged with the supervision or insurance of depository institutions or their holding companies. 
  
 In addition, any certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers in connection with the offering of the Notes shall be deemed to be a representation and warranty by the Company as to matters covered thereby, to each Initial Purchaser.

  

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 4. Representations and Warranties of the Initial Purchasers. The Initial Purchasers propose to
offer the Notes for sale upon the terms and conditions set forth in this Agreement and the Final Memorandum, and each Initial Purchaser hereby represents and warrants to and agrees with the Company that: 
  
 (a) It will offer and sell the Notes only to persons whom it
reasonably believes are “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A in transactions meeting the requirements of Rule 144A and that, in purchasing such Notes, are deemed to have represented and
agreed as provided in the Final Memorandum under the caption “Notice to Investors”; 
  
 (b) It is a QIB within the meaning of Rule 144A; and 
  
 (c) It has not and will not directly or indirectly, solicit offers in the United States for, or offer or
sell, the Notes by any form of general solicitation, general advertising (as such terms are used in Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. 
  
 5. Certain Covenants of the Company: The Company hereby agrees that:

  
 (a) The Company will prepare the Final
Memorandum in a form reasonably approved by the Initial Purchasers and will make no amendment or supplement to the Final Memorandum to which the Initial Purchasers reasonably object; 
  
 (b) Promptly from time to time, the Company will take such action as the Initial Purchasers may reasonably
request to qualify the Notes and the Shares for offering and sale under the securities laws of such jurisdictions as the Initial Purchasers may request and will comply with such laws so as to permit the continuance of sales and dealing therein in
such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation, to file a general consent to service
of process or subject itself to any tax in any such jurisdiction where it is not now so qualified or subject; 
  
 (c) At any time prior to completing the sale of the Notes by the Initial Purchasers, the Company will furnish the Initial Purchasers in a
timely manner with as many copies of the Final Memorandum, any documents incorporated by reference therein and any amendment or supplement thereto as the Initial Purchasers may from time to time reasonably request, and if, at any time prior to the
completion of the resale of the Notes by the Initial Purchasers, any event shall have occurred as a result of which the Final Memorandum as then amended or supplemented would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary or desirable
during such same period to amend or supplement the Final Memorandum, the Company will notify the Initial Purchasers and upon the request of the Initial Purchasers will prepare and furnish without charge to the Initial Purchasers and to any dealer in
securities as many copies as the Initial Purchasers may from time to time reasonably request of an amended Final Memorandum or a supplement to the Final Memorandum which will correct such statement or omission or effect such compliance; 

 

 12 








 (d) During the period beginning from the date hereof and continuing until the date 90
days after the date of the Final Memorandum, the Company will not, without the prior written consent of Bear Stearns, issue, offer, sell, contract to sell, hypothecate, pledge, grant or sell any option, right or warrant to purchase, or otherwise
dispose of, or contract to dispose of, any Shares, any securities substantially similar to the Notes or the Common Stock or the Class B Common Stock (the “Class B Common Stock”) of the Company, par value $0.01 per share, any
securities that are convertible into or exchangeable for shares of Common Stock or Class B Common Stock and debt securities or any securities that are convertible into or exchangeable for the Notes or such other debt securities (other than (i) the
issuance of the Notes; (ii) the issuance of Shares upon conversion of the Notes; (iii) the issuance of shares of Common Stock or Class B Common Stock or Non-Cumulative Convertible Preferred Stock, Series B upon conversion or exercise of convertible
or exercisable or exchangeable securities outstanding as of the date of this Agreement or (iv) the issuance of shares of Common Stock or Class B Common Stock or options pursuant to employee stock option or employee stock purchase plans existing on,
or upon exercise of warrants outstanding as of, the date of this Agreement), or enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or the Class B Common Stock
or Notes irrespective of whether any transaction mentioned above is to be settled by delivery of the Common Stock, the Class B Common Stock, the Notes or other securities, in cash or otherwise; 
  
 (e) So long as any of the Notes (or Shares issued upon
conversion thereof), at any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, for the benefit of holders from time to
time of the Notes, the Company will furnish at its expense, upon request, to holders and beneficial owners of Notes and prospective purchasers of Notes information required to be provided pursuant to subsection (d)(4)(i) of Rule 144A; 
  
 (f) The Company will use its best efforts to cause the Notes
to be eligible for trading in PORTAL; 
  
 (g) For
so long as the Notes remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports or other communications (financial or other) furnished to stockholders of the Company, and will deliver to the Initial Purchasers (i)
as soon as they are available, copies of any reports and financial statements furnished to or filed by the Company with the Commission or any securities exchange on which the Notes or any class of securities of the Company is listed. 
  
 (h) The Company will use the net proceeds received by it
from the sale of the Notes pursuant to this Agreement in the manner specified in the Final Memorandum under the caption “Use of Proceeds”; 
  

 13 








 (i) The Company will reserve and keep available at all times free of preemptive rights,
Shares for the purpose of enabling the Company to satisfy any obligations to issue Shares upon conversion of the Notes; 
  
 (j) the Company will use its best efforts to list, as promptly as practicable but in no event later than the time that the registration
statement is declared effective in accordance with the Registration Rights Agreement, and subject to notice of issuance, the Shares on the NASDAQ; 
  
 (k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay
or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including, without limitation, (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in
connection with the issuance and sale of the Notes and all other fees and expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the
furnishing of copies thereof to the Initial Purchasers and to dealers (including costs of mailing and shipment), (ii) all costs related to the preparation, issuance, execution, authentication and delivery of the Notes and the Shares, (iii) all costs
related to the transfer and delivery of the Notes to the Initial Purchasers, including any transfer or other taxes payable thereon, (iv) the word processing and/or printing charges and expenses of counsel to the Initial Purchasers (but not including
their fees for professional services) of this Agreement, the Registration Rights Agreement and the Indenture, and the reproduction and/or printing and furnishing of copies thereof to the Initial Purchasers and to dealers (including costs of mailing
and shipment), (v) all expenses in connection with the qualification of the Notes and the Shares for offering and sale under state laws and the cost of printing and furnishing of copies of any blue sky or legal investment memorandum to the Initial
Purchasers and to dealers (including filing fees and the fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with such blue sky or legal investment memorandum), (vi) the costs and
charges of the Trustee and any transfer agent, registrar or depositary, (vii) the fees and expenses, if any, incurred in connection with the admission of the Notes for trading in PORTAL or any appropriate market system, (viii) the costs and expenses
of the Company relating to investor presentations and (ix) all other cost and expenses incident to the performance of the Company’s obligations hereunder for which provision is not otherwise made in this Section 5(k); 
  
 (l) Neither the Company nor any Affiliate will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Notes in a manner which would require the registration under the Securities Act of
the offer and sale of the Notes pursuant to this Agreement; 
  
 (m) The Company will not solicit any offer to buy or offer or sell the Notes or the Shares by means of any form of general solicitation or general advertising (as those terms are used in Regulation D) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities Act; 
  

 14 








 (n) During the period after the time of purchase or the additional time of purchase, if
later, the Company will not, and will not permit Affiliates, to resell any of the Notes or the Shares which constitute “restricted securities” under Rule 144 under the Securities Act that have been reacquired by any of them except pursuant
to an effective registration statement under the Securities Act; 
  
 (o) Neither the Company nor any Affiliate will take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Notes contemplated hereby; and 
  
 (p) For so long as the Notes remain outstanding, the Company
and each Subsidiary will comply in all material respects with all applicable securities and other laws, rules and regulations, including without limitation, the Sarbanes-Oxley Act. 
  
 6. Reimbursement of Initial Purchasers’ Expenses: If the Firm Notes are not delivered for any reason other than
the default by one or more of the Initial Purchasers in their obligations hereunder, the Company will reimburse the Initial Purchasers for all of their out-of-pocket expenses (including the reasonable fees and disbursements of their counsel)
reasonably incurred by the Initial Purchasers in connection with this Agreement or the offering contemplated hereunder. 
  
 7. Conditions of Initial Purchasers’ Obligations: The several obligations of the Initial Purchasers hereunder are subject to the accuracy in
all material respects of the representations and warranties on the part of the Company on the date hereof and at the time of purchase. The several obligations of the Initial Purchasers at the additional time of purchase are subject to the accuracy
in all material respects of the representations and warranties on the part of the Company on the date hereof, at the time of purchase (unless previously waived) and at the additional time of purchase, as the case may be. Additionally, the several
obligations of the Initial Purchasers hereunder are subject to performance by the Company of its obligations hereunder and to the following conditions: 
  
 (a) The Company shall furnish to Bear Stearns at the time of purchase and at the additional time of purchase, as the case may be, opinions
of Camner, Lipsitz & Poller, P.A. and Cadwalader Wickersham & Taft LLP, counsel for the Company, addressed to the Initial Purchasers and dated the date of the time of purchase or the date of the additional time of purchase, as the case may
be, and in form reasonably satisfactory to counsel for the Initial Purchasers, in the forms as set forth in Exhibits A-1 and A-2 hereto; 
  
 (b) Bear Stearns shall have received on the date of this Agreement, at the time of purchase and the additional time of purchase, as the
case may be, from PricewaterhouseCoopers LLC customary comfort letters dated as of the date of this Agreement, the date of the time of purchase and the date of the additional time of purchase, as the case may be, and addressed to the Initial
Purchasers, in form and substance satisfactory to counsel for the Initial Purchasers; 
  

 15 








 (c) Bear Stearns shall have received at the time of purchase and at the additional time
of purchase, as the case may be, the opinion of Simpson Thacher & Bartlett LLP, counsel for the Initial Purchasers, dated the date of the time of purchase or the date of the additional time of purchase, as the case may be, in form and substance
reasonably satisfactory to Bear Stearns; 
  
 (d)
No amendment or supplement to the Final Memorandum, or any document which upon filing with the Commission would be incorporated by reference in the Final Memorandum, shall at any time have been made or filed to which Bear Stearns has reasonably
objected in writing; 
  
 (e) At the time of
purchase or the additional time of purchase, as the case may be, the Final Memorandum shall not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; 
  
 (f) Between the time of execution of this Agreement and the time of purchase or the additional time of purchase, as the case may be, (i) no material adverse change or any development involving a prospective material
adverse change in the business, properties, management, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole shall occur or become known and (ii) no transaction which is material and unfavorable to the
Company (other than as disclosed in the Final Memorandum) shall have been entered into by the Company or any of the Subsidiaries; 
  
 (g) The Company will, at the time of purchase and, if applicable at the additional time of purchase, deliver to you a certificate of its
Chief Executive Officer and its Chief Financial Officer in the form attached as Exhibit C hereto; 
  
 (h) You shall have received copies, duly executed by the Company and the other parties thereto, of the Registration Rights Agreement and
the Indenture; 
  
 (i) Each executive officer and
director of the Company shall have entered into Lock-Up Agreements in the form attached as Exhibit B hereto on or prior to the date hereof, and each such Lock-Up Agreement shall have been delivered to you and shall be in full force and effect
at the time of purchase and the additional time of purchase, as the case may be; 
  
 (j) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in
the Final Memorandum as of the time of purchase and the additional time of purchase, as the case may be, as you may reasonably request; 
  
 (k) The Notes shall have been designated for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase;
and 
  

 16 








 (l) Between the time of execution of this Agreement and the time of purchase or
additional time of purchase, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization”, as that term is defined in Rule 436(g)(2) promulgated under the Securities Act. 

 
 8. Termination: The several obligations of the Initial Purchasers
hereunder shall be subject to termination in the absolute discretion of Bear Stearns, if, (x) since the time of execution of this Agreement or the earlier respective dates as of which information is given in the Final Memorandum, there has been any
material adverse change or any development involving a prospective material adverse change in the business, properties, management, financial condition or results of operations of the Company and the Subsidiaries taken as a whole, which would, in
Bear Stearns’ judgment, make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Final Memorandum; (y) at any time prior to the time of purchase or, with
respect to the purchase of any Additional Notes, the additional time of purchase, as the case may be, there shall have occurred: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) an outbreak or escalation of hostilities or acts of terrorism involving the United States or a declaration by the United States of a
national emergency or war; or (v) any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in Bear Stearns’
judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Final Memorandum; or (z) at any time prior to the time of purchase or, with respect to the
purchase of any Additional Notes, the additional time of purchase, as the case may be, there shall have occurred any downgrading, or any notice or announcement shall have been given or made of (i) any intended or potential downgrading or (ii) any
watch, review or possible change that does not indicate an affirmation or improvement in the rating accorded any securities of or guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating organization,”
as that term is defined in Rule 436(g)(2) under the Securities Act. 
  
 If you elect to terminate this Agreement as provided in this Section 8, the Company shall be notified as provided for herein. 
  
 If the sale to the Initial Purchasers of the Notes, as contemplated by this Agreement, is not carried out by the Initial Purchasers for any reason
permitted under this Agreement or if such sale is not carried out because the Company shall be unable to comply and does not comply with any of the terms of this Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5(k), 6 and 9 hereof), and the Initial Purchasers shall be under no obligation or liability to the Company under this Agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder. 
  

 17 








 9. Indemnity by the Company and the Initial Purchasers: 
  
 (a) The Company agrees to indemnify, defend and hold
harmless each Initial Purchaser, its directors and officers, and any person who controls any Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Initial Purchaser Indemnified
Party”), and the successors and assigns of all the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, any such Initial Purchaser
Indemnified Party or any such person may incur under the Securities Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Memorandum, as amended or supplemented, if applicable, or arises out of or is based upon any omission or alleged omission to state a material fact necessary to make the statements made therein, in
the light of the circumstances under which they were made, not misleading, except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission
of a material fact contained in or omitted from and in conformity with information furnished in writing by or on behalf of any Initial Purchaser to the Company expressly for use therein or (ii) any untrue statement or alleged untrue statement made
by the Company in Section 3 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein; provided that the foregoing indemnity shall not inure to the benefit of any Initial Purchaser who
fails to deliver a Final Memorandum (as then amended or supplemented and provided by the Company to the Initial Purchasers in the requisite quantity and on a timely basis to permit proper delivery on or prior to the Closing Date) to the person
asserting any loss, damage, expense, liability or claim caused by an untrue statement or alleged untrue statement of a material fact contained in the Preliminary Memorandum or caused by any omission or alleged omission to state therein a material
fact necessary to make the statement therein, in the light of the circumstances under which they were made, not misleading, if such Final Memorandum would have cured the material misstatement or omission or alleged material misstatement or omission.

  
 (b) Each Initial Purchaser severally agrees
to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified
Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Initial Purchaser to the Company
expressly for use in any Memorandum or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading, in connection with such information. 
  
  

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 (c) If any action, suit or proceeding (each, a “Proceeding”) is brought
against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 9, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be
sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and such Indemnifying Party shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to such
Indemnified Party and payment of all fees and expenses; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability it may have under this Section 9 to such
Indemnified Party, except to the extent that it has been prejudiced in any material respect by such failure, or relieve such Indemnifying Party from any liability it may have otherwise. Such Indemnified Party shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the
defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within a reasonable time after the receipt of notice thereof or such Indemnified Party shall have reasonably
concluded upon written advice of counsel that there may be defenses available to it that are different from, additional to, or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the
right to direct that portion of the defense of such Proceeding on behalf of such Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the
expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such Proceeding). An Indemnifying Party shall
not be liable for any settlement of any such Proceeding effected without its written consent, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from
and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than
60 business days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such
Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. An Indemnifying Party shall not, without the prior written consent of any Indemnified Party, 
  

 19 








 effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party
is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party. 
  
 (d) If the indemnification provided for in this Section 9 is unavailable to an Indemnified Party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, damages, expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Initial Purchasers on the other hand
from the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Initial Purchasers on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of Initial Purchasers’ discounts and
commissions but before deducting expenses) received by the Company bear to the discounts and commissions received by the Initial Purchasers. The relative fault of the Company on the one hand and of the Initial Purchasers on the other shall be
determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Initial Purchasers and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to
above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding. 
  
 (e) The Company and the Initial Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 9,
no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Notes resold by it in the initial placement of such Notes were offered to investors exceeds the amount of any damages which
such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of 
  

 20 








 such fraudulent misrepresentation. The Initial Purchasers’ respective obligations to contribute
pursuant to this Section 9 are several in proportion to the respective principal amount of Notes they have purchased hereunder, and not joint. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity. 
  
 (f) The indemnity and contribution agreements contained in this Section 9 and the covenants, warranties and representations of the Company
and the Initial Purchasers contained in this Agreement shall remain in full force and effect (regardless of any investigation made by on behalf of any Initial Purchaser, its directors or officers or any person who controls such Initial Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of the Company, its directors and officers or any person who controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act), and shall survive any termination of this Agreement or the issuance and delivery of the Notes. The Company and the Initial Purchasers agree promptly to notify the other of the commencement of any litigation or
proceeding against it and, in the case of the Company, against any of the Company’s officers and directors, in connection with the issuance and sale of the Notes, or in connection with any Memorandum. 
  
 10. Effectiveness; Increase in Initial Purchasers’ Commitments:
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. 
  
 Subject to Sections 8 and 9, if, at the time of purchase, or the additional time of purchase, as the case may be, any Initial Purchaser shall default in
its obligation to take up and pay for the Notes to be purchased by it at such time hereunder (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 9 hereof) and if the aggregate
principal amount of Notes which all Initial Purchasers so defaulting shall have agreed but failed to take up and pay for at such time does not exceed 10% of the total aggregate principal amount of Notes to be purchased at such time, the
non-defaulting Initial Purchasers shall take up and pay for (in addition to the aggregate number of Notes they are obligated to purchase at such time pursuant to Section 1 hereof) the aggregate principal amount of Notes agreed to be purchased by all
such defaulting Initial Purchasers at such time, as hereinafter provided. Such Notes shall be taken up and paid for by such non-defaulting Initial Purchaser or Initial Purchasers in such amount or amounts as you may designate with the consent of
each Initial Purchaser so designated or, in the event no such designation is made, such Notes shall be taken up and paid for by all non-defaulting Initial Purchasers pro rata in proportion to the aggregate principal amount of Firm Notes set opposite
the names of such non-defaulting Initial Purchasers in Schedule A. 
  
 Without relieving any defaulting Initial Purchaser from its obligations hereunder, the Company agrees with the non-defaulting Initial Purchasers that it will not sell any Firm Notes hereunder unless all of the Firm Notes are purchased by
the Initial Purchasers (or by substituted Initial Purchasers selected by you with the approval of the Company or selected by the Company with your approval). 
  

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 If a new Initial Purchaser or Initial Purchasers are substituted by the Initial Purchasers or by the
Company for a defaulting Initial Purchaser or Initial Purchasers in accordance with the foregoing provision, the Company or you shall have the right to postpone the time of purchase for a period not exceeding five business days in order that any
necessary changes in the Final Memorandum and other documents may be effected. 
  
 The term “Initial Purchaser” as used in this Agreement shall refer to and include any Initial Purchaser substituted under this Section 10 with like effect as if such substituted Initial Purchaser had
originally been named in Schedule A. 
  
 If, at the time of
purchase, the aggregate principal amount of Firm Notes which the defaulting Initial Purchaser or Initial Purchasers agreed to purchase exceeds 10% of the total principal amount of Firm Notes which all Initial Purchasers agreed to purchase hereunder,
and if neither the non-defaulting Initial Purchasers nor the Company shall make arrangements within the five business day period stated above for the purchase of all the Firm Notes which the defaulting Initial Purchaser or Initial Purchasers agreed
to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of the Company to any non-defaulting Initial Purchaser and without any liability on the part of any non-defaulting Initial
Purchaser to the Company. If, at the additional time of purchase, the aggregate principal amount of Additional Notes which the defaulting Initial Purchaser or Initial Purchasers agreed to purchase exceeds 10% of the total principal amount of
Additional Notes which all Initial Purchasers agreed to purchase hereunder, the non-defaulting Initial Purchasers shall have the option to (a) terminate their obligation hereunder to purchase the Additional Notes or (b) purchase not less than the
principal amount of Additional Notes that such non-defaulting Initial Purchasers would have been obligated to purchase in the absence of such default. Nothing in this paragraph, and no action taken hereunder, shall relieve any defaulting Initial
Purchaser from liability in respect of any default of such Initial Purchaser under this Agreement. 
  
 11. Information Furnished by the Initial Purchasers: The statements set forth in the last paragraph on the cover page of the Final Memorandum and
the statements set forth in the eleventh paragraph under the caption “Plan of Distribution” in the Final Memorandum constitute the only information furnished by or on behalf of the Initial Purchasers. 
  
 12. Notices: All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and: 
  
 (a)
if sent to any Initial Purchaser, shall be mailed, delivered, or faxed and confirmed in writing, to such Initial Purchaser c/o Bear, Stearns & Co. Inc., 383 Madison Avenue, New York, New York 10179, Attention: Stephen Parish, Senior Managing
Director, Equity Capital Markets, with a copy to Initial Purchaser’s Counsel at Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York, 10017, Attention: Gary I. Horowitz, Esq.; 
  
 (b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to the Company and its counsel at the addresses set forth in the Registration Statement, Attention: Humberto L. Lopez; 
  

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 provided, however, that any notice to an Initial Purchaser pursuant to Section 11 shall be delivered or sent by
mail or facsimile transmission to such Initial Purchaser at its address set forth in its acceptance facsimile to Bear Stearns, which address will be supplied to any other party hereto by Bear Stearns upon request. Any such notices and other
communications shall take effect at the time of receipt thereof. 
  
 13. Governing Law and Construction: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. THE SECTION HEADINGS IN THIS AGREEMENT HAVE
BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT. 
  
 14. Parties at Interest: The Agreement herein set forth has been and is made solely for the benefit of the Initial Purchasers and the Company and the controlling persons, directors and officers referred to in
Section 9 hereof, and their respective successors, assigns, executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from the Initial Purchasers) shall acquire or have any
right under or by virtue of this Agreement. 
  
 15.
Counterparts: This Agreement may be signed by the parties in counterparts which together shall constitute one and the same agreement among the parties. Delivery of an executed counterpart by facsimile shall be effective as delivery of a
manually executed counterpart thereof. 
  
 16. Submission to
Jurisdiction: Except as set forth below, no Proceeding may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for
the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and the Company hereby consents to the jurisdiction of such courts and personal service with respect thereto. The Company hereby consents
to personal jurisdiction, service and venue in any court in which any Proceeding arising out of or in any way relating to this Agreement is brought by any third party against the Initial Purchasers. The Company hereby waives all right to trial by
jury in any Proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a final judgment in any such Proceeding brought in any such court shall be conclusive and
binding upon the Company and may be enforced in any other courts in the jurisdiction of which the Company is or may be subject, by suit upon such judgment. 
  
 17. Knowledge: The use of the term “knowledge” shall mean actual knowledge. 
  

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 If the foregoing correctly sets forth the understanding between the Company and the Initial Purchasers,
please so indicate in the space provided below for the purpose, whereupon this letter and your acceptance shall constitute a binding agreement between the Company and the Initial Purchasers. 
  

			
	 Very truly yours,

	
	 BANKUNITED FINANCIAL CORPORATION

		
	 By:
	 	  


	 	 	 Name:

	 	 	 Title:



  
 Accepted and agreed to as of the
date first 
 above written on behalf of itself and the 
 other
Initial Purchasers named in Schedule A hereto: 
  

			
	 BEAR STEARNS & CO. INC.

		
	 By:
	 	  


	 	 	 Name:

	 	 	 Title:


  
  

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