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JPMorgan Chase Bank, London Branch
P.O. Box 161
60 Victoria Embankment
London EC4Y 0JP, England
June 18, 2003
Security Capital Shopping
Mall Business Trust
c/o GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
RE: SHARE FORWARD TRANSACTION (REF. NO ________)
Dear Sir / Madam:
The purpose of this letter agreement (this "CONFIRMATION") is to confirm
the terms and conditions of the above-referenced transaction entered into
between Security Capital Shopping Mall Business Trust and JPMorgan Chase Bank,
London Branch, on the Trade Date specified below (the "TRANSACTION"). This
Confirmation shall supersede all or any prior written or oral agreements in
relation to the Transaction. This Confirmation constitutes a "CONFIRMATION" as
referred to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions
(the "SWAP DEFINITIONS") and the 1996 ISDA Equity Derivatives Definitions (the
"EQUITY DEFINITIONS" and together with the Swap Definitions, the "DEFINITIONS"),
in each case as published by the International Swaps and Derivatives
Association, Inc., are incorporated into this Confirmation. In the event of any
inconsistency between the Swap Definitions and the Equity Definitions, the
Equity Definitions will govern and in the event of any inconsistency between the
Definitions and this Confirmation, this Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the ISDA
Master Agreement and Schedule thereto dated as of June 18, 2003, as amended and
supplemented from time to time (the "AGREEMENT"), between you and us, with the
obligations of Counterparty guaranteed by General Electric Capital Corporation
("GE CAPITAL"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
1. The terms of the particular Transaction to which this Confirmation
relates are as follows:
GENERAL TERMS:
Party A: Security Capital Shopping Mall Business Trust
(hereinafter referred to as "COUNTERPARTY")
Party B: JPMorgan Chase Bank (hereinafter referred to as
"JPMORGAN")
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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Trade Date: June 18, 2003.
Effective Date: June 24, 2003, or on such later date as designated
pursuant to the terms of the Underwriting Agreement
dated the date hereof among the Issuer, Counterparty,
JPMorgan, and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated and the other underwriters named therein
(the "UNDERWRITING AGREEMENT").
Base Amount: Initially, 3,906,667 Shares. On each Settlement Date,
the Base Amount shall be reduced by the number of
Settlement Shares for such Settlement Date.
Maturity Date: June 18, 2004.
Forward Price: On the Effective Date, the Initial Forward Price, and on
any other day, (i) the Forward Price on the immediately
preceding calendar day multiplied by the sum of (A) 1
PLUS (B) the Daily Rate for such day, MINUS (ii) the sum
of any cash dividend paid on such day (other than any
cash dividend for which the ex-dividend date occurred
prior to the Effective Date); PROVIDED that if on any
Settlement Date an ex-dividend date for a cash dividend
has occurred, but such dividend has not yet been paid,
then, solely for the purpose of calculating the
Settlement Amount for such Settlement Date, the present
value (as determined by the Calculation Agent) of such
dividend shall be deducted from the Forward Price on
such Settlement Date.
Initial Forward Price: USD $31.1355 per Share.
Daily Rate: For any day, (i)(A) USD-Federal Funds Rate (as defined
below) minus (B) the Spread, divided by (ii) 360.
"USD-FEDERAL FUNDS RATE" means the rate sate forth for
such day opposite the caption "Federal funds
(effective)", as such rate is displayed on the page
"Feds Open - Index - [GO]" on the BLOOMBERG Professional
Service, or any successor page or such other source for
the US dollar Federal Funds rate designated by Borrower
and Lender (or any successor or replacement page); and
if, by 5:00 p.m., New York City time, on such day, such
rate fort such day does not appear or is not yet
published, the rate for such date will be the rate set
forth in such other recognized electronic source used
for the purpose
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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of displaying such rate, for such day opposite the
caption "Federal funds (effective)". If, by 5:00 p.m.,
New York City time, on the day that is one New York City
Banking Day following such day, such rate does not
appear or is not yet published on any other recognized
electronic source, the rate for such day will be the
rate for the first preceding day for which such rate is
set forth on the "Feds Open - Index - [GO]" page on the
BLOOMBERG Professional Service.
Spread: 0.20%.
Shares: Common Stock, $0.01 par value per share, of Regency
Centers Corporation (the "ISSUER") (Exchange identifier:
"REG").
Exchange: New York Stock Exchange
Related Exchange(s): The principal exchanges(s) for options contracts or
futures contracts, if any, with respect to the Shares.
Clearance System: DTC
Calculation Agent: JPMorgan Chase Bank The Calculation Agent shall promptly
notify the parties of its calculations and
determinations in respect of the Transaction. The
calculations and determinations of the Calculation Agent
shall be final absent manifest error. The Calculation
Agent shall promptly correct any instances of manifest
error following any notice of such error from a party.
If Counterparty in good faith claims that a calculation
or determination is erroneous, both parties shall
promptly negotiate in good faith to resolve the dispute,
failing which Counterparty shall promptly appoint two
independent leading market dealers and JPMorgan shall
promptly appoint two independent leading market dealers
to make the relevant calculation or determination. In
the case of a calculation, such calculation shall be the
arithmetic mean of the calculations by the appointed
dealers without regard to the calculations that have the
highest and lowest values (if there are four different
calculations), and in the case of a determination, such
determination shall be the determination agreed upon by
at least three of the four dealers; provided that, if
fewer than four dealers provide a calculation or
determination or if three dealers do not agree on a
determination, then Counterparty and JPMorgan shall
agree on the appointment of such number of
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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additional dealers such that the Calculation Agent
receives four calculations or such that three dealers
agree on a determination as the case may be.
SETTLEMENT TERMS:
Settlement Date: Any Exchange Business Day following the Effective Date
and up to and including the Maturity Date, as designated
by Counterparty in a written notice (a "SETTLEMENT
NOTICE") delivered to JPMorgan at least ten (10)
Exchange Business Days, in the case of Physical
Settlement, and forty-five (45) Exchange Business Days,
in the case of Cash Settlement, prior to such Settlement
Date, unless different periods for notice are mutually
agreed to by Counterparty and JPMorgan; PROVIDED that
the Maturity Date shall be a Settlement Date if on such
date the Base Amount is greater than zero.
Settlement: Settlement of this Transaction shall be Physical
Settlement as specified below unless Counterparty
informs JPMorgan in writing no fewer than forty-five
(45) Exchange Business Days prior to the scheduled
Settlement Date that Counterparty has elected Cash
Settlement at Counterparty's option, unless a different
period for notice is mutually agreed to by Counterparty
and JPMorgan. If Physical Settlement is elected, then
(i) Counterparty may elect to satisfy its obligation to
deliver Shares under this Transaction, in whole or in
part, by assigning to JPMorgan its right to receive
delivery of an equal number of Shares (or such lesser
number as may then be subject to a loan) under that
certain Securities Loan Agreement dated as of December
22, 1999 (the "BASE SECURITIES LOAN AGREEMENT"), among
PaineWebber Incorporated and X.X. Xxxxxx Securities Inc.
("JPMSI"), as amended to add JPMorgan as a party
pursuant to a letter agreement dated as of June 18,
2003, among UBS Securities LLC ("UBS"), Agent and
JPMorgan, as amended from time to time, and as further
supplemented by the Supplemental Securities Loan
Agreement dated as of June 18, 2003 (the "SUPPLEMENTAL
SECURITIES LOAN AGREEMENT", and together with the Base
Securities Loan Agreement, the "SECURITIES LOAN
AGREEMENT"), among JPMorgan, Counterparty and UBS and
(ii) JPMorgan may elect to satisfy its payment
obligation under this Transaction, in whole or in part,
by assigning to
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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Counterparty its right to the return of Collateral (as
such term is defined in the Securities Loan Agreement)
under the Securities Loan Agreement in amount equal to
the amount of such payment obligation (or such amount as
may then be held as Collateral under the Securities Loan
Agreement). If (a) Counterparty or JPMorgan fails to
perform its delivery or payment obligations, as the case
may be, under this Transaction on the Settlement Date or
(b) Counterparty or JPMorgan fails to perform its
obligation to return the Collateral or to deliver the
Loaned Shares (as such term is defined in the Securities
Lending Agreement), as the case may be, under the
Securities Lending Agreement, then Physical Settlement
shall apply and Counterparty and JPMorgan shall be
deemed to have made the elections described in clauses
(i) and (ii) of the preceding sentence; PROVIDED that
the non-defaulting party shall not be deemed to have
made its respective election under clause (i) or clause
(ii) unless, concurrently with the assignment by the
non-defaulting party of the right to receive delivery of
Shares under the Securities Loan Agreement or the right
to return of the Collateral, as the case may be, the
defaulting party fully performs its obligation under
this Transaction to deliver Shares or to pay the
Settlement Amount, as the case may be, to the extent
that the number of Loaned Shares is less than the number
of Shares required to be delivered hereunder or the
amount of Collateral required to be returned is less
than the amount required to be paid hereunder, as the
case may be.
Physical Settlement: On any Settlement Date, Counterparty shall deliver to
JPMorgan a number of Shares equal to the Settlement
Shares for such Settlement Date, and JPMorgan shall
deliver to Counterparty, by wire transfer of immediately
available funds to an account designated by JPMorgan, an
amount in cash equal to the Settlement Amount for such
Settlement Date, on a delivery versus payment basis. The
Settlement Shares delivered in accordance with the terms
of this Transaction will have been held by Counterparty
as of the Trade Date or will have been acquired by
Counterparty from holders of Shares and not from the
Issuer and will not be subject to any preemptive or
similar rights and will be free and clear of liens and
other encumbrances.
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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Cash Settlement: On any Settlement Date, the party indicated below shall
make the specified cash payment by wire transfer of
immediately available funds to the designated account:
(A) If the Forward Price equals or exceeds the
Final Equity Level, JPMorgan shall pay an
amount equal to:
(Forward Price - Final Equity Level) x
Settlement Shares
(B) If the Forward Price is less than the Final
Equity Level, Counterparty shall pay an
amount to equal to:
(Final Equity Level - Forward Price) x
Settlement Shares
Settlement Shares: With respect to any Settlement Date, a number of Shares,
not to exceed the Base Amount, designated as such by
Counterparty in the related Settlement Notice; PROVIDED
that on the Maturity Date the number of Settlement
Shares shall be equal to the Base Amount.
Settlement Amount: For any Settlement Date, an amount in cash equal to the
product of the Forward Price on such Settlement Date and
the number of Settlement Shares for such Settlement
Date.
Final Equity Level: The average execution price paid by JPMorgan to purchase
a number of Shares equal to the Settlement Shares during
the period after JPMorgan has received notice of the
election of Cash Settlement by Counterparty and prior to
the Settlement Date. The average execution price shall
include any fees or commissions paid by JPMorgan in
connection with purchases of the Shares.
Settlement Currency: USD.
Failure to Deliver: Applicable.
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment.
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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EXTRAORDINARY EVENTS:
Consequences of Merger Events:
(a) Share-for-Share: Alternative Obligation on the Business Day
following the Merger Event with mutually agreed upon commercially
reasonable adjustments to the terms to preserve the economics of
the transaction as originally bargained for pursuant to the terms
stated herein; PROVIDED that prior to the Merger Event JPMorgan
shall be permitted to elect a Settlement Date with Physical
Settlement within three (3) Business Days preceding the day such
Merger Event is scheduled to occur.
(b) Share-for-Other: JPMorgan shall be permitted to elect a Settlement
Date with Physical Settlement within three (3) Business Days
preceding the day such Merger Event is scheduled to occur.
(c) Share-for-Combined: In respect of any Share-for-Combined Merger
Event, as soon as practicable but not to exceed five Business Days
prior to the occurrence of the Merger Event, the parties shall
mutually agree upon appropriate adjustments to the terms of the
transaction and, if the parties are unable to so agree, JPMorgan
shall be permitted to elect a Settlement Date with Physical
Settlement within three (3) Business Days preceding the day such
Merger Event is scheduled to occur.
If, as a result of a Merger Event, Counterparty would receive securities
that would be subject to resale restrictions pursuant to Rule 144 or Rule
145 under the Securities Act of 1933, as amended, then Counterparty may
elect Physical Settlement and designate a Settlement Date which shall
occur within three (3) Business Days preceding the day such Merger Event
is scheduled to occur (regardless whether such Settlement Date occurs
within six months of the Effective Date).
Nationalization or Insolvency: Negotiated Close-out.
Termination Currency: USD
Account Details:
Payments to Counterparty: To be advised under separate cover or
telephone confirmed prior to each Payment
Date. Payments to JPMorgan:
To be advised under separate cover or
telephone confirmed prior to each Payment
Date.
Delivery of Shares to JPMorgan: To be advised.
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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2. Other Provisions:
CONDITIONS TO EFFECTIVENESS:
The effectiveness of this Confirmation on the Effective Date shall be subject to
(i) the condition that the representations and warranties of the Issuer and
Counterparty contained in the Underwriting Agreement and any certificate
delivered pursuant thereto by the Issuer or Counterparty be true and correct on
the Effective Date as if made as of the Effective Date, (ii) the condition that
the Issuer and Counterparty have each performed all of the obligations required
to be performed by it under the Underwriting Agreement on or prior to the
Effective Date and (iii) the satisfaction of all of the conditions set forth in
Section 6 of the Underwriting Agreement.
COVENANT OF COUNTERPARTY:
Counterparty agrees to comply with its obligations under the terms of the
Securities Loan Agreement, as mutually agreed upon with Borrower thereunder, it
being acknowledged that Counterparty's obligation to return Collateral to
Borrower under the Securities Loan Agreement is expressly conditioned upon
Borrower tendering delivery of the Shares borrowed thereunder.
The parties acknowledge and agree that any Shares delivered by Counterparty to
JPMorgan on any Settlement Date and returned by JPMorgan to securities lenders
from whom JPMorgan borrowed Shares in connection with hedging its exposure to
the Transaction will be freely saleable without further registration or other
restrictions under the Securities Act of 1933, as amended, in the hands of those
securities lenders, PROVIDED that they are not affiliates of the Issuer.
Accordingly, Counterparty agrees that the Settlement Shares that it delivers to
JPMorgan on each Settlement Date will not bear a restrictive legend and that
such Settlement Shares will be deposited in, and the delivery thereof shall be
effected through the facilities of, the Clearance System.
EARLY SETTLEMENT EVENT:
Notwithstanding any other provision hereof, JPMorgan shall have the right, upon
two Exchange Business Days' notice to Counterparty, to designate any Exchange
Business Day to be a Settlement Date with Physical Settlement applicable, and to
select the number of Settlement Shares for such Settlement Date, if in the
judgment of the Calculation Agent, JPMorgan is, on the date of such designation,
unable to hedge JPMorgan's exposure to the Transaction because of the lack of
sufficient Shares being made available for Share borrowing from lenders at a
daily rebate rate received by JPMorgan, net of the cost to JPMorgan of borrowing
the Shares, of at least (i) USD-Federal Funds Rate, MINUS 20 basis points,
DIVIDED by (ii) 360.
Notwithstanding any other provision hereof, if the Issuer reduces the number of
outstanding Shares such that any of the Shares subject to delivery to JPMorgan
pursuant to this Transaction would be treated as "Excess Shares" under the
articles of incorporation of the Issuer, JPMorgan, upon a two Exchange Business
Days' notice, shall have the right to designate any Exchange Business Day to be
a Settlement Date with Physical Settlement applicable with respect to a number
of Settlement Shares necessary to avoid any of the Shares being treated as such
"Excess Shares".
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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ASSIGNMENT:
JPMorgan may assign or transfer any of its rights or duties hereunder or
delegate its obligations hereunder to (i) any affiliate of JPMorgan; PROVIDED
that JPMorgan may not make any such assignment if, immediately after giving
effect to the proposed assignment, an Event of Default or Potential Event of
Default with respect to JPMorgan or with respect such proposed assignee would
occur; or (ii) to the extent necessary to avoid any of the Shares subject to
delivery to JPMorgan pursuant to this Transaction being treated as "Excess
Shares" under the articles of incorporation of the Issuer, any entity not
affiliated with JPMorgan with a credit rating at the time of such assignment of
AA- or above by a nationally recognized statistical rating organization (as
defined in the Securities Exchange Act of 1934) with the consent of Counterparty
which consent will not be unreasonably withheld. Notwithstanding any other
provision of the Agreement or this Confirmation to the contrary requiring
JPMorgan to purchase, sell, receive or deliver any Shares or other securities to
or from Counterparty, JPMorgan may designate any of its affiliates to purchase,
sell, receive or deliver such shares or other securities or otherwise to perform
JPMorgan's obligations in respect of the transactions contemplated under the
Agreement or this Confirmation and any such designee may assume such
obligations, and JPMorgan shall be discharged of its obligations to Counterparty
to the extent of any such performance. This Confirmation is not intended and
shall not be construed to create any rights in any Person other than
Counterparty, JPMorgan, an affiliate of JPMorgan designated hereunder and their
respective successors and assigns and no other Person shall assert any rights as
third party beneficiary hereunder. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party.
MATTERS RELATING TO JPMSI, AS AGENT:
Each party agrees and acknowledges that (i) JPMSI, an affiliate of Xxxxxx, acts
solely as agent on a disclosed basis with respect to the Transactions
contemplated hereunder, and (ii) JPMSI has no obligation, by guaranty,
endorsement or otherwise, with respect to the obligations of either Counterparty
or JPMorgan hereunder, either with respect to the delivery of cash or Shares,
either at the beginning or the end of the transactions contemplated hereby. In
this regard, each Counterparty and JPMorgan acknowledges and agrees to look
solely to the each other, or any successor or assign, as applicable, for
performance hereunder, and not to JPMSI.
3. The Agreement is further supplemented by the following provisions:
TERMINATION PROVISIONS:
If an Early Termination Date occurs other than as a result of Illegality, this
Transaction shall not be included in calculating any amounts payable under
Section 6(e) of the Agreement, but rather such Early Termination Date shall be
considered the Settlement Date (regardless of whether such Early Termination
Date occurs within six months after the Effective Date) for the Base Amount with
Physical Settlement applicable.
MISCELLANEOUS:
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Counterparty:
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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Address: Security Capital Shopping Mall Business Trust
c/o GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: 000-000-0000
with a copy to:
Address: GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Legal Operation/Security Capital
Telecopy No.: 000-000-0000
and
Address: General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
Telecopy No.: 000-000-0000
Address for notices or communications to JPMorgan:
Address: JPMorgan Chase Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
EDG Corporate Marketing
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
with a copy to:
Address: JPMorgan Chase Bank
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Collateral Operations
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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Address for notices or communications to Agent:
Address: X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone No. 000-000-0000
Telecopy No. 000-000-0000
(b) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS
CONFIRMATION OR ANY CREDIT SUPPORT DOCUMENT. Each party (i) certifies
that no representative, agent or attorney of the other party has
represented, expressly or otherwise, that such other party would not,
in the event of such a suit action or proceeding, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into this Confirmation by, among other
things, the mutual waivers and certifications in this Section.
Governing Law: The laws of the State of New York (without
reference to choice of law doctrine).
Representations, Warranties
and Covenants of Counterparty: Counterparty represents and warrants to, and
agrees with, JPMorgan as follows:
(a) Counterparty (i) has such knowledge and
experience in financial and business affairs
as to be capable of evaluating the merits and
risks of entering into the Transaction; and
(ii) has consulted with its own legal,
financial, accounting and tax advisors in
connection with the Transaction.
(b) None of Counterparty or any of its
affiliates is in possession of any material
non-public information regarding the Issuer.
(c) Counterparty shall comply with the
reporting and other requirements of Section 13
and Section 16 of the Securities Exchange Act
of 1934 relating to this Transaction.
(d) Counterparty covenants that it will send
to JPMorgan via facsimile a copy of each
filing under Section 13 or 16 of the Exchange
Act relating to this Transaction concurrently
with filing or transmission for filing, as the
case may be, of such form to or with the
Securities and Exchange Commission (the
"SEC").
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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(e) Counterparty is not and has not been the
subject of any civil proceeding of a judicial
or administrative body of competent
jurisdiction that could reasonably be expected
to impair Counterparty's ability to perform
its obligations hereunder.
(f) Neither the consummation of any of the
transactions herein contemplated by
Counterparty nor the fulfillment of the terms
hereof by Counterparty will conflict with,
result in a breach or violation of, or
constitute a default under (i) any law or the
charter or by-laws of Counterparty or (ii) the
terms of any indenture or other agreement or
instrument to which Counterparty or any of its
subsidiaries is a party or bound, or any
judgment, order or decree applicable to
Counterparty or any of its subsidiaries of any
court, regulatory body, administrative agency,
governmental body or arbitrator having
jurisdiction over Counterparty or any of its
subsidiaries other than (with respect to this
clause (ii)) any such conflicts, breaches,
violations or defaults that would not
reasonably be likely to have a material
adverse effect on the ability of Counterparty
to consummate the transactions herein
contemplated or to fulfill the terms hereof.
(g) Counterparty will immediately notify
JPMorgan upon obtaining knowledge of the
occurrence of any event that would constitute
an Event of Default, a Potential Event of
Default or a Potential Adjustment Event.
(h) Counterparty is an "eligible contract
participant" as such term is defined in
Section 1(a)(12) of the Commodity Exchange
Act, as amended.
(i) Counterparty is not as of the Trade Date,
and will not as of the Effective Date after
giving effect to the transactions contemplated
hereby, be insolvent.
(j) The parties hereto intend that (a)
JPMorgan be a financial institution within the
meaning of Section 101(22) of Title 11 of the
United States Code (the "BANKRUPTCY Code"),
(b) the Agreement and this Confirmation be a
securities contract, as such term is defined
in Section 741(7) of the Bankruptcy Code, (c)
each and every transfer of funds, securities
and other
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
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property under the Agreement or this
Confirmation be a settlement payment or a
margin payment, as such terms are used in
Sections 362(b)(6) and 546(e) of the
Bankruptcy Code, (d) the rights given to
JPMorgan hereunder upon an Event of Default
constitute the rights to cause the liquidation
of a securities contract and to set off mutual
debts and claims in connection with a
securities contract, as such terms are used in
Sections 555 and 362(b)(6) of the Bankruptcy
Code, and (e) any or all obligations that
either party has with respect to this
Transaction or the Agreement constitute
property held by or due from such party to
margin, guaranty or settle obligations of the
other party with respect to Transactions under
this Confirmation or any other agreement
between such parties.
(k) Counterparty and JPMorgan agree that
Counterparty and Counterparty's employees,
representatives, or other agents are
authorized to disclose to any and all persons,
without limitation of any kind, the U.S.
federal income tax treatment and U.S. federal
income tax structure of the transaction and
all analyses, that have been provided to
Counterparty relating to such tax treatment
and tax structure.
(l) Counterparty agrees that the Settlement
Shares delivered in accordance with the terms
of this Transaction will have been held by
Counterparty from the Trade Date or after the
date hereof will have been acquired by
Counterparty from holders of Shares other than
the Issuer and will not be subject to any
preemptive or similar rights and will be free
and clear of liens and other encumbrances.
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx, XX0X 0XX.
Head office 000 Xxxx Xxxxxx, Xxx Xxxx, XXX.
13
Please confirm that the foregoing correctly sets forth the terms of our
agreement by signing and returning this Confirmation to JPMSI.
Confirmed as of the date first above written:
JPMORGAN CHASE BANK,
BY ITS AGENT X.X. XXXXXX SECURITIES INC.
By: /s/ XXXXXXX X. XXXX
--------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING
MALL BUSINESS TRUST
By: /s/ XXXXXX X. XXXXX
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
